NEW 2018 MINIMUM WAGE RATES STATE BY STATE (includes counties and city specific)

Below is a list of all current minimum wage statutes.  Remember that some counties and cities have their own rate which may be higher than the state or Federal rate.  In all cases, the highest rate for your area is the minimum.  Also, all of these rates are based on information as of November 30, 2017 and could be subject to local changes before the start of the year.  This is a good time to remind everyone that  you are better off using a time clock or other daily recording device for all hours worked and that all employee should be paid based on the hours worked and not some other method.  Employers would be best served if they required even salaried employees to keep a record of their hours worked and in some states, the requirement extends to show that meal breaks are recorded for all employees.  As always, if you have any questions, please call HR Mobile Services, Inc. and we would be happy to help.

2018 MINIMUM WAGE

Federal $7.25

State City/County Amount

Alabama $7.25

Alaska*

$9.84 Arizona* — all cities/counties except …  $10.50 Flagstaff* $11.00

Arkansas $8.50

California* — all cities/counties except …  small employer (25 or less) $10.50 large employer (26 or more) $11.00

Berkeley $13.75

Cupertino* $13.50

El Cerrito* $13.60

Emeryville small employer (55 or less) $14.00 large employer (56 or more) $15.20

Los Altos* $13.50

Los Angeles small employer (25 or less) $10.50 large employer (26 or more) $12.00

Malibu small employer (25 or less) $10.50 large employer (26 or more) $12.00

Milpitas* $12.00

Mountain View* $15.00 Oakland $12.86

Palo Alto* $13.50

Pasadena small employer (25 or less) $10.50 large employer (26 or more) $12.00

Richmond* employer PAYS $1.50/hr towards medical benefits $11.91 employer does NOT pay               $1.50/hr towards medical benefits $13.41

Sacramento* small employer (100 or less) $10.50 large employer (101 or more) $11.00

San Diego $11.50

San Francisco $14.00

San Jose* $13.50

San Leandro $13.00

San Mateo* For-profit organizations $13.50 Non-profit organizations $12.00

Santa Clara* $13.00

Santa Monica small employer (25 or less) $10.50 large employer (26 or more) $12.00 Sunnyvale* $15.00

Los Angeles County small employer (25 or less) unincorporated areas large employer (26 or more) $10.50 $12.00

 

Colorado* $10.20

Connecticut $10.10

Delaware $8.25

Florida* $8.25

Georgia $7.25

Hawaii* $10.10

Idaho $7.25

Illinois — all cities/counties except … $8.25 Chicago $11.00 Cook County (except for the Village of Barrington) $10.00

Indiana $7.25

Iowa  $7.25

Kansas $7.25

Kentucky  $7.25

Louisiana $7.25

Maine* — all cities/counties except … $10.00 Portland $10.68

Maryland — all cities/counties except … $9.25 Montgomery County $11.50 Prince George’s County $11.50

Massachusetts $11.00 Michigan* $9.25

Minnesota* “small employers” (employers with an annual sales volume of less than $500,000) $7.87 “large employers” (employers with an annual sales volume of $500,000+) $9.65

Mississippi $7.25

Missouri $7.70

Montana* $8.30

Nebraska $9.00

Nevada $8.25

New Hampshire $7.25

New Jersey* $8.60

New Mexico — all cities/counties except … $7.50 Albuquerque* employer provides benefits $7.95 employer does NOT provide benefits $8.95 Las Cruces* $9.45 Santa Fe $11.09 Bernalillo County*  employer provides benefits $7.85 (unincorporated areas)  employer does NOT provide benefits $8.85 Santa Fe County (unincorporated areas) $11.09

New York**

“Upstate” employers (excluding fast food employees) $10.40 “Downstate” employers (excluding fast food employees) $11.00 “Small” NYC employers (excluding fast food employees $12.00 Fast food employees outside NYC $11.75 “Large” NYC employers (excluding fast food employees) $13.00 Fast food employees inside NYC $13.50 North Carolina $7.25 North Dakota $7.25 Ohio* $8.30

Oklahoma $7.25

Oregon — all cities/counties except … $10.25 Portland $11.25 Nonurban Counties  (Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa Wheeler counties) $10.00

Pennsylvania $7.25

Rhode Island* $10.10

South Carolina $7.25

South Dakota* $8.85

Tennessee $7.25

Texas $7.25

Utah $7.25

Vermont* $10.50

Virginia $7.25

Washington* — all cities/counties except … $11.50 City of SeaTac* (hospitality and transportation workers) $15.64 Seattle* $14.00 small employer who does not pay towards medical benefits

(500 or less) small employer who does pay towards medical benefits  (500 or less) $11.50 large employer who does not pay towards medical benefits  (501 or more) $15.00 large employer who does pay towards medical benefits  (501 or more) $15.45 Tacoma* $12.00

Washington DC $12.50

West Virginia $8.75

Wisconsin $7.25

Wyoming $7.25  * = increase in minimum wage effective January 1, 2018 ** = increase in  minimum wage effective December 31, 2017

Second Article Printed in Progressive Dairyman Magazine – Marijuana Laws and You

We were again privileged to be asked to submit an article covering the new Marijuana Laws for Progressive Dairyman magazine.  You can read the article here: https://www.progressivedairy.com/topics/management/cutting-through-the-smoke-marijuana-and-the-workplace or  you can read the article in the October 18 issue.

Please feel free to leave a comment or ask questions regarding this or any HR issue.   You can always call our office at 559-625-2322 if you are a customer or would like more information.

 

IT’S A GOOD TIME TO REVIEW YOUR EMERGENCY ACTION PLAN

With all of the wild fires, shootings, hurricanes and earthquakes going on right now, we must remember that these events go on all of the time and it is not always in a cluster as it seems right now.  That being said, it is a great reminder that employers have a responsibility to their employees as well as to the business, to have a plan in place for such emergency situations.

Practice Your Emergency Plan

First on the list, do you have an emergency action plan.  If you are an employer in California,  you should have an IIPP (Injury Illness Prevention Program) and as a part of that program, you should have an Emergency Action Plan in place.  OSHA requires this and most states require a similar safety program.  It makes great sense and many insurance companies will ask for it as well.

But it is not enough to have an plan, you have to actually practice it.  When was the last time you had a fire drill?  Do your employees know how to give directions to your building?  How do you notify your neighbors if there is an emergency?  What happens if YOU are not there?  Where do your employees meet and who checks to make sure everyone is accounted for?  All of these questions and others should be addressed and practiced.

California employers must also have a Fire Prevention Plan (FPP) that details the fire hazards your employees may face and how to handle a fire should the situation arise.

Paying Employees

(these are California rules and may be different in your state)

Even in an emergency, employers must be mindful of obligations under state employment laws and consider pay issues for exempt and nonexempt employees related to office closures.

Employers must pay exempt employees a full weekly salary for any week in which any work is performed. If the business is closed for the whole week, however, employers don’t need to pay exempt employees.

In emergencies, special pay rules apply for nonexempt employees.

If your business shuts down for any of the following reasons, you must only pay nonexempt employees for the hours they worked prior to being sent home:

  • Operations can’t start or continue due to threats to you or property or when recommended by civil authority;
  • Public utilities such as water, gas, electricity or sewer fail; or
  • Work is interrupted by an “Act of God” or other causes not within the employer’s control.

However, if you shut down your business at your discretion (and not for one of the above reasons), reporting time pay may be owed. When a nonexempt employee shows up for work as scheduled and is not put to work or is given less than half of his/her scheduled hours, the employee would be eligible for reporting time pay: pay for one half of the scheduled shift, no less than two hours and no more than four hours.

Of course, employers are always free to pay employees or let them use vacation or other personal time. Many employers may choose to provide some paid time during emergency situations. Just remember to be consistent!

Leave of Absence

You may be required to provide various leaves of absence for your employees after an emergency including sick leave, medical leave and leave due to closed schools, loss of housing, etc.  So, be ready to aid your employees with these measures as well.  The state requires the employer by statute to follow certain guidelines and imposes fines for failure to comply.  In all cases, error on the side of helping the employee during stressful situations.

As always, if you need any help or have questions, HR Mobile Services, Inc is here to help.  You may contact our office at (559) 625-2322 and direct your questions to the Loss Prevention Department or the Legal Department (depending on your situation).  We are here to help!

GOVERNOR BROWN SIGNS 15 NEW LAWS, 5 WITH PREVAILING WAGE REQUIREMENTS

This past week, Governor Brown signed 15 housing bills into law.  5 of them include a prevailing wage component that goes into effect January 1, 2018.

California has a definite housing problem.  Right now there is a need for 180,000 homes and only 88,000 homes are being built in an average year.

Existing law already requires that prevailing wage be paid to workers on State financed project (ever wonder why it costs so much for the State to do anything?).  This new legislation reaches over into the private sector to tell them how much they must pay everyone and extends the influence of Unions into non-union work-places.

Prevailing wages have been around since the 1930’s and were used to kick-start the economy with projects such as the Hoover Dam.  As an example, if you are a bricklayer in Sacramento, the prevailing wage is $70 per hour.  In San Francisco, that may be $90.  And, of course, there is the story of the person who was paid $46 per hour to vacuum at a construction site because that is the prevailing wage for clean-up work.  The Janitorial description would have been much less at around $12 per hour.

An analysis of the cost of prevailing wage on the average home in California reveals the following:

  1. Almost all employees will be paid a much higher wage.  The range is an increase of 39% for electricians to 116% for construction labor.
  2. The overall increase in labor cost for residential construction would be 89%
  3. Labor accounts for about 41% of the cost of an average home, so this would mean an increase in the total construction cost of 37%
  4. Put into monetary terms, if the average cost of home construction is $88 per square foot, the 37% increase would add another $32 per square foot for a total cost increase on the average home of $84,000!

Proponents of the bills say the cost will be mitigated by the fact you are hiring professionals who will work faster, more efficiently, with less errors in the construction process.  However, they have no significant evidence to back up this assumption.  Rather, I refer you to the Bay Bridge retrofit project in San Francisco built by Union workers and under prevailing wages that is crumbling and needs millions of dollars to be fixed.  I also refer you to our present high-speed rail project with it’s original cost going from $9 billion to $65 billion (or more) as costs continue to rise.  These projects do not support the idea that if you pay a person more, they will save you money.

So far, these bills only apply to projects that take advantage of certain State fast-track waivers for environmental reviews and permitting process.  However, based on past history, the next round of legislation may be to impose prevailing wage on all “trades” work.  And, it may reach over to regular private work that is not regulated by State laws.  It could move next to any work permitted by the county, city or municipality.  The cement slab you want for a patio may double in cost.

This is a long, slippery slope that has no factual standing.  At the end of the day, there may be no increase in building homes because the cost savings of fast-tracked government regulations may not off-set the increase labor costs.  In fact, it may not even off-set the increased worker’s compensation insurance costs associated with the significant increase in wages.  If labor costs increase 87%, then worker’s comp costs will almost double for the contractors.  Also, there is an a large increase in payroll taxes associated with the increased payroll.  The State likes that.

So, what we have here is another example of legislation written to make the Politicians look like they are doing something, and appeasing their select groups (unions).  But, there is very little evidence it will actually improve the housing problem in California and even less chance that those homes will reduce the cost of housing.  We will have to wait and see what comes next.

USCIS ISSUES UPDATE TO I-9

In March, we finally got the updated I-9 that was about 6 months late.  Now they have updated that I-9 which has a date of July 17, 2017.

Work site enforcement and I-9 audits and inquiries by ICE will continue to increase.  An updated I-9 form has been issued.  Your Company needs to make sure that it is completing the new Form I-9 for every newly hired employee, auditing its I-9 forms, complying with the E-Verify requirements as applicable, and otherwise review and follow the immigration compliance strategies we have previously taught, including on how to respond to SSA and identity theft inquiries.  As part of your compliance, you should implement the new I-9 as soon as possible.

The link for the new form is here: https://www.uscis.gov/i-9  note: you cannot use the Spanish version except in Puerto Rico.

On July 17, 2017, USCIS issued a revised Form I-9.  All employers must use the new Form I-9 by September 18, 2017.  The newest version of the Form I-9 is dated 07/17/17 in the bottom left corner, with the expiration date of 08/31/2019 in the top left corner. You can use either the 11/14/2016 or the 07/17/17 Form I-9 through September 17, 2017.  On September 18, 2017, however, use only the 07/17/17 Form I-9 and make sure the I-9 is fully complete and section 1 must be completed on the first day an employee works for you.

There were changes made to both the Form I-9 instructions and the Form I-9 itself.  Make sure to post the new Form I-9 instructions on the wall where you have your required employment posters.  And, have the List A, B and C page available for employees when they complete the I-9 form.   Do not ask employees for specific types of documents to complete the I-9 form.  Always let the employee choose one document from List A or one document from List B and C.

The changes to the new Form I-9 are minimal.  One change is that the old sentence that read employee must complete the Form I-9 “no later than the end of the first day of employment” was changed to read that Section 1 must be completed “no later than the first day of employment.

Another change is that on the Form I-9 instructions, the DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to the Immigrant and Employee Rights Section to reflect the new name of the Office of Special Counsel (“OSC OF DOJ”)that was changed on January 18, 2017.  This is the government  agency that handles discrimination charges if a company is considered overzealous in asking for specific or additional documents, or is discriminatory in how it handles SSN mismatches, or if a company targets or singles our individuals with EAD authorizations or permanent resident cards differently than others.

And, another change is that on the Form I-9, List C on the List of Acceptable Documents, it was revised to add the Form FS-240 Report of Consular Birth Abroad and all the certifications or reports of birth issued by the Department of State were combined into one number on the List of Acceptable Documents.  The other List C documents (with the exception of List C) were then renumbered.

Please ensure that your Company implements the new Form I-9 before September 19, 2017.  It may also be a good time to conduct an internal I-9 audit and I-9 training to help ensure proper compliance with the immigration, employment verification, and E-Verify requirements, as applicable.  Let us know if you want us to complete any I-9s training with booklets and certificates or do any I-9 audits of I-9 forms etc.   Please stay vigilant on your internal I-9 audits and ensure your team is trained on completing I-9 forms, avoiding discrimination, know how to respond to government investigations, and are following protocols on responding to police, DES or other third party inquiries about identity issues.  Keep safe in the hot summer and take time now to audit your I-9 forms.

The fines have increased significantly.  Companies who previously had one audit are likely on the list for a second audit.  Those companies who already experienced a second I-9 audit and violations were noted, are likely to see a third audit so it pays to take the time to ensure your I-9’s are in compliance.  Please let us know if you have any questions or if there is anything we can do to assist you.  HR Mobile Services, Inc. will continue to monitor and update your current and future employee packets and forms to comply with State and Federal regulations.

UPDATE TO CALIFORNIA IRRIGATORS AND OVERTIME

Late last  year and early this year we discussed the new Agriculture Labor laws going into effect in California.  Mostly it was centered on the reduction of hours over time from a 10 hour work day to an 8 hour work day.

However, in the language of the bill was a very important phrase that said this bill affects “all Agricultural workers”.  This created quite a stir among lawyers and the split was about 50\50.  Some took this literally to mean that all workers in the agriculture profession, were now subject to the same rules and there would be no exceptions.  Others, pointing to the history going back the the 1930’s that exempted irrigators from the overtime regulations, that this would be cleaned up by the Labor Commissioner who is charged with rewriting the Wage Orders to comply with the legislation.

So far, we have not seen a new Wage order 14 so the one that is on the books is all we have to direct our work for now.

At the beginning of the year, we advised people, based on legal opinions, to continue treating irrigators as exempt employees until we heard from the Labor Commissioner.  At that time, we figured we would see something in writing by March and since it was raining, most employers were not working irrigators over 10 hours a day.  However, now we are into July with no definitive answer.  So, at this point, we are changing our recommendations, and it is our opinion that you SHOULD pay irrigators for overtime if they work over 10 hours in a day or over 60 hours in a week, just as you do other workers.

We base this opinion on the following:

  1. Previously, if the decision came down that you would have to pay overtime to irrigators going back to January 1, 2017, we were most likely not talking about a lot of hours and the employer can pay it out in one check and would most likely avoid any penalty fines.
  2. Now that we are in the heat of the year and irrigators are working full time, there is more possibility of them working overtime and the bill to pay back-wages is increasing.  At this time, it would be better to pay overtime incurred since July 1 and if we hear later that you must pay overtime from January 1, you can still pay that smaller amount in one check and avoid penalties.
  3. We don’t want to create a situation where you have many employees who have moved on to other employers and they come back to you and accuse you of not paying overtime.  This becomes more of an issue as time goes by.

The decision to pay overtime is still your at this writing, but we feel it is the better position to pay it now and avoid more trouble potentially in the future.  Even if the Labor Commissioner ultimately corrects the wording or interpretation and exempts irrigators from overtime, it is a small price to pay for avoiding litigation later.

WORK WEEKS UPHELD BY CALIFORNIA SUPREME COURT

Monday, the California Supreme court voted 7-0 in favor of the seven days in the same  work week interpretation.  This means that, if you define your work week, as long as an employee has one day off in that workweek, they are not eligible for premium ovcr-time payments.  They rejected the interpretation that employees should only work 6 days and affirmed the wording that employees may only work 6 days in the same work week.

Here is how it works.  If your work week is Monday through Sunday, and the employee works every day in the week, the hours they work on Sunday would be subject to the 7th day penalty where the first 8 hours are at time and a half and all hours after the 8th hour are double time.  However, if an employee worked Wednesday to the following Wednesday, there is no violation of the seven day rule because they had at least one day off in each work week as defined.

This is why it is so important to establish and notify your employees of your work week in your employee handbook and other documents.  It does not have to align with paydays, but it is preferable.  Remember, if you pay twice a month, it is possible that a payday falls in the middle of a pay period and you may miss an employee working through the seven day rule because part falls in 2 different pay periods.  You are still responsible for paying the penalty overtime if this happens.  You would apply it in the pay period where the seventh day was worked.

Overall, this is a victory for employers who have been following these rules as written for many years.  To change them now would have been a huge hit to employers across California.  Having one day off a work week is good for employer and employee, but a new law of 1 day off in any seven days could be hard to adjust.  This is especially true of businesses such as restaurants where you have high turnover, people calling in sick and then you have to ask another employee to come in to cover a shift.

So, rejoice, the courts did the right thing.  The best way to keep the government out of these things is to pay properly, follow the law and make sure your competition is doing the same.

UFW GUILTY OF FAILING TO PAY ITS EMPLOYEES FOR HOURS WORKED!!

Yes, you are reading this correctly.  The Union that made its name on protecting the rights of Agricultural workers will have to pay out over $885,000 in back pay and another $235,000 in penalties.  The Union is going to appeal, but many of you will find this gratifying.  There is not much more to report on this right now, but this could be a turning point for politician who fall over themselves to align with this organization that only represents about 3% of the agriculture workers in California.  Perhaps we will see our politicians using a little more common sense.  Or, maybe we are hoping for too much.  Still, the irony of this story is not lost on agricultural employers everywhere.

PROTOCOLS IF OSHA, ICE OR OTHER AGENCIES COME ON YOUR PROPERTY

When any agency comes on the property, first notify the Manager/Owner of the Property.

If you are one of our customers, call HR Mobile Services at (559) 625-2322 or Ken directly

Keep the agents aside and away from other workers until you know the reason for their visit.

Ask to see their credentials.

Verify if this is a random visit, or due to a complaint being filed.

Make note of any dates that may be limiting their search.

If they are with ICE, you have 72 hours to produce the I-9s in question.  Do not let them intimidate you as this is your right.  Kindly ask them to leave and set a time and date to meet with them in 3 days.

If they are with OSHA, you can only put them off for an hour or so until the highest ranked supervisor on the property can be contacted and meet them.  Meanwhile, make sure they are kept by the office or away from viewing most of the property and employees.  Check your phones, as HR Mobile Services, Inc. may be trying to reach you to give you additional directions.  Make sure to have someone check restrooms for Paper and Paper towels.  Check for quick items like no personal food mixed with medication in the refrigerators, electrical panel doors shut, general clutter and tripping hazards put away.

IS WATER AVAILABLE AND PAPER CUPS WITH A TRASH RECEPTICLE NEARBY?

Keep your employees calm.  They are much safer on the dairy than if they leave the location.  Nothing can happen to them on the property, they are protected.

BE COURTEOUS AND LISTEN TO WHAT THE INSPECTORS ARE TELLING YOU.   YOU WANT TO HAVE A GOOD WORKING RELATIONSHIP AT THIS POINT.   YOU DON’T NEED TO BE THEIR FRIEND, BUT YOU DON’T NEED ANY ENEMIES EITHER.   STAY CALM! 

If you are one of our customers……..Call HR MOBILE SERVICES, INC. (559) 625-2322 IMMEDIATELY!

DEALING WITH EMPLOYEE WALKOUTS – DON’T REACH FOR TERMINATION PAPERS FIRST

The information below comes from the California Chamber of Commerce and provides a very good review of your rights as employers and employees regarding walking off the job.  HR Mobile Services, Inc. agrees with most of the assumptions in this piece.  However, I would also point out that it mentions other factors.  In the case of leaving live animals unattended this could be animal abuse and requires a higher standard of the employee and their actions.  Also, walking off without communicating with the employer or not showing up to work and not communicating with the employer is not a protected action.  In most cases, the employees were not walking off because of the particular employer or their work conditions.  One customer reported an employee said he was not coming in because the employer voted for Trump.  That is not a protected action.

Please read the full article below.

Quite a few news reports discuss recent employee walkouts across the country in protest of new federal policies, such as the recent “Day Without Immigrants” protests.

Employers are obviously concerned about how these protests might affect their business operations and what they should do. In some news reports, employers showed support for employees who choose to protest. But in other reports, employers found that the protest activity was cause for disciplinary action.

The situation can be tough to navigate.

If an employee doesn’t show up at all or walks out in the middle of a shift, this will certainly create a mess for employers, the customers they are trying to serve and the work that needs to get done. Employers want to be able to ensure productivity and maintain attendance policies.

Despite these legitimate concerns, employers should exercise caution before taking disciplinary action against an employee who fails to show up to work because of a protest. In some, but not all, circumstances, the employee’s behavior may be legally protected.

If you have concerns that employee walkouts will disrupt your ability to operate, the best course of action is to seek advice of counsel.

Possible Protections

The National Labor Relations Act (NLRA) protects the rights of employees to engage in “protected concerted activity,” which the National Labor Relations Board (NLRB) generally defines as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection (Sections 7, 8(a)(1)).

This right applies to both union and nonunion employees. In fact, the NLRB often enforces this right in nonunionized settings.

In some circumstances, when employees get together to specifically protest working conditions or job issues, such as wages, the NLRA protects those activities. For example, we saw workers protesting in 2015 for a higher minimum wage. Since this activity was related to improving the employees’ working conditions, it may be entitled to protection under the NLRA.

In other circumstances, the question is more difficult. For example, if workers walk off the job to participate in a general rally opposing the current administration, it is less likely that they are organizing together to try and improve their working conditions. In this situation, NLRA protections might not apply to the employees’ behavior.

It’s not going to be easy for an employer to make a split-second decision as to whether the workers’ activity is protected or not. Recent walkouts involved federal immigration policy and enforcement measures. Both of these can affect workplace conditions, especially if your business employs a large number of immigrants. But not all the protests zeroed in on a specific issue of improving workplace conditions.

Given the difficulty of determining whether the activity is protected, caution on the employer’s part and consultation with counsel is warranted before taking any disciplinary action. Each boycott may be different, and, thus, employee participation may or may not be protected. Also, blanket statements that the employees cannot participate without jeopardizing their jobs may not pass legal muster.

Unfortunately, this area involves a detailed analysis.

Loss of Protections

Keep in mind that employees can lose any protections they are entitled to. For instance, if employees engage in certain acts of misconduct, the NLRA will not protect them. Examples could include planning the destruction of property or threatening or engaging in violence.

If the walkouts are not isolated occurrences but are, instead, reoccurring, employees may also lose protection. Under current law, workers who strike multiple times, especially in the same labor dispute, can lose the NLRA’s protections and face discipline or termination. The NLRB, in some situations, has found that intermittent strikes are not protected.

Slowdowns, where the workers stay at work but don’t do anything, may also be unprotected.

Immigration Protections

California provides several protections against immigration-related discrimination and retaliation, laws that are stronger than even federal protections. These laws may come into play with the protests or walkouts.

Under California law, all individuals, regardless of immigration status, who applied for employment or who were employed in the state are entitled to all protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law.

This includes state labor, employment, civil-rights and employee-housing laws. You cannot inquire about a person’s immigration status except when necessary by clear and convincing evidence to comply with federal immigration law. These laws are found in several overlapping California statutes (Civ. Code sec. 3339; Lab. Code sec. 1171.5; Health and Safety Code sec. 24000; Govt. Code sec. 7285).

California also has strong protections for immigrant workers who complain about unfair wages or working conditions (Labor Code sec. 1019). For instance, an employer may not threaten to contact, or contact, immigration authorities because an employee complained that he/she was paid less than the minimum wage.

Critically, it’s unlawful in California to report or threaten to report the suspected citizenship or immigration status of an employee, former employee, prospective employee or a member of the employee’s family because that person exercised a right under the Labor Code, Government Code or Civil Code. This is a broader protection than just protecting complaints about wages and hours; it also covers other rights, such as bringing a discrimination or harassment complaint under the Government Code.

In addition:

·         Business and Professions Code section 494.6 permits the state to suspend or revoke an employer’s business license where the employer makes a report or threatens to report suspected immigration status in violation of Labor Code section 244.

·         Penal Code section 519 provides that a person may be guilty of criminal extortion if the person threatens to report the immigration status or suspected immigration status of an individual, or his/her relative or a member of his/her family.

Both California and federal laws also protect workers from discrimination on the basis of national origin.

Off-Duty Conduct

Remember that California law protects employees for engaging in lawful conduct during nonworking hours. So if the employees engage in protests outside working hours, leave it be. Labor Code section 96(k) allows employees to bring claims for lost wages when they are disciplined or discharged for lawful conduct during nonworking hours.

California’s Labor Code section 1101 prohibits employers from adopting or enforcing any rule, regulation or policy that:

·         Forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office.

·         Controls or directs, or tends to control or direct the political activities or affiliations of employees.

Best Practices

If you are affected by walkout activity, keep the following in mind:

·         Plan ahead if you know that employees are going to engage in walkouts.

·         Deal with staffing issues.

·         Consider talking to your workers to allow them to explain why they are planning to participate in the walkout.

·         Consult legal counsel about the appropriate course of action.

·         Don’t automatically take disciplinary action or threaten disciplinary action without legal consultation.

·         Make sure that company policies are job-related and applied consistently and fairly.

·         Remember that your employees’ social media activities may also be protected.

·         Train managers and supervisors to be mindful of employee protection issues.

What do immigrant protections mean in relation to recent walkouts or boycotts?

·         Employers should not assume that an employee who protests is undocumented.

·         Employers should never ask employees to re-verify their eligibility to work (by completing a new Form I-9) simply because the employees are involved in political activity relating to immigration issues or because the employer is now suspicious that the employee is undocumented. The Form I-9 should have been completed at the time of hire.

·         Supervisors and managers should understand that using, or threatening to use, the suspected immigration status of an employee or employee’s family member because that employee is exercising protected rights is unlawful conduct.