California Auto Dealer: NEW LAWS: Be Careful What You Ask For

December 2016

Over 30 Years’ Experience Handling Buy/Sells And Automotive Law          Dec. 2016

NEW LAWS
BE CAREFUL WHAT YOU ASK FOR!  
New Wage Discrimination Ammunition Effective Jan. 1, 2017
Erin K. Tenner
On September 30, 2016 Governor Brown signed into law an amendment to the California Labor Code that effectively makes it unlawful to ask candidates for employment about their prior wage history.  The purpose of the legislation is to target wage discrimination.  The legislative history indicates that the bill authors were primarily concerned about wage discrimination against women, however, it does not say it applies only to women.  The law says only that salary cannot be based on past income – not that asking for past income is illegal, but the legislative history has the effect of making it illegal because it can be used in court to show the intent of the law.
Although this legislation is a California law, the legislative history cites federal case law arising out of the Equal Pay Act, so it should be considered a potential issue even for dealerships outside of California.  California law is also often cited to support new court decisions in other states. 
Damages for violation of the new law equal the amount of deprived wages, plus interest, plus liquidated damages in the same amount – in other words, double damages.
How do you protect your business?  Make sure everyone who is interviewing candidates for employment knows not to ask about prior salary history.  Take any request for prior wages out of job applications. 
What can you ask for?  You can ask what pay prospective employees would like to receive.  You can also ask them why they think they are worth that amount of pay.  If they tell you their prior salary without you having asked, it is okay as long as you don’t base their pay on the history.  Keep a record of the reason for the salary decision and make sure it is not based on salary history.
There are criteria spelled out in the Code that justify disparate pay between similarly situated employees.  If the wage differential is based on any of the following, it is considered legal:
  1. A seniority system.
  2. A merit system.
  3. A system that measure earnings by quantity or quality of production.
  4. A bona fide factor other than gender, such as education, training or experience that is job related.
The factors relied upon must be applied reasonably and account for the entire wage differential.
What should you do if you realize you are already violating this law?  There are ways to make up the difference and obtain a waiver of the violation, with the approval of the Division of Labor Standards. Maintain all of your wage records for at least three years.  This Code Section can be enforced by an action taken by the Division of Labor Standards.  A civil action can be commenced no later than two years after the cause of action occurs, unless the action is shown to be willful, then the filing can be up to three years after the offense.   
The Obama Administration signed an executive order requiring all employers with over 100 employees to report to the government how much they pay their employees, broken down by gender, race and ethnicity.  Although it seems likely that this Executive Order will be overturned with the stroke of a pen once President-elect Trump takes office, even if he does erase the reporting requirement, the Equal Pay Act of 1963 and the new California law still remain.  Be careful what you ask for!

SCAM ALERT

A new scam relating to the Affordable Care Act involves e-mail with an attached CP 2000 notice.  These notices should not be opened.  The IRS only sends these notices by mail.  They are never sent by e-mail to taxpayers. 
Any such e-mails should be forwarded to phishing@irs.gov and then deleted from your e-mail account.  A keyword search can also be done for any notice received at irs.gov.

Please Note
These articles are necessarily general in nature and do not substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.
California Auto Dealer is a registered trademark. The content of this Newsletter may not be duplicated without permission. 

Erin K. Tenner
(818) 907-4071

STATE SALES TAX IS 
GOING DOWN
On January 1, 2017 state sales tax will decline by 0.25%.  Make sure you deduct this amount from whatever you charge in your area for sales tax.  This is a result of the expiration of Proposition 30 which began in 2012 and raised sales tax by 0.25% to fund schools. 
 

SINGLE USE RESTROOM LABELING CHANGES REQUIRED

If you have a single user restroom at your place of business that has “no more than one water closet AND one urinal” (emphasis added) you will be required to label it usable for all genders pursuant to new Health and Safety Code Section 118600 effective March 1, 2017.  No longer does the law allow a men’s room and ladies room if there is only one toilet in the restroom.  Although the law on its face appears to apply only if there is also a urinal in the restroom, the legislative intent makes clear it applies to single user restrooms whether or not they contain a urinal.  

NEW LABOR BOARD BOND REQUIREMENTS

Effective January 1, 2017, an employer who has appealed a Labor Board ruling and lost, and wants to file a writ of mandate to the Superior Court must post a bond in the amount due, according to the citation being challenged for wages 
liquidated, damages and overtime but excluding penalties. If the employer does not pay any amounts owed per judgment on the writ or settlement agreement within 10 days after the ruling or settlement, the bond will be assessed to pay the award.


NEW JOB APPLICATION REQUIREMENTS

Current law prohibits an employer from questioning a prospective employee about criminal arrests that didn’t result in conviction. An amendment to the existing law (CA Labor Code Section 432.7) goes into effect January 1, 2017 making it unlawful to ask about juvenile convictions. To comply with the law, be sure your employment applications specifically exclude juvenile court convictions from any request for information about prior convictions.  


NEW COMMERCIAL LEASE REQUIREMENT

All commercial leases signed on or after January 1, 2017 must include a statement as to whether or not the premises has been inspected by a Certified Access Specialist.  If an inspection has been done, the law requires a copy of the inspection report be provided to the tenant.  Certified Access Specialists are often hired by commercial property owners to determine whether the property complies with the Americans With Disabilities Act.  If the property complied when you purchased it or last modified it, there is no requirement that it be updated regularly but there is a requirement that it be brought into compliance with current laws when certain modifications are done to the property.  If the premises hasn’t been issued a disability access inspection certificate, CA Civil Code Section 1938 (e) provides specific language that must be included in the lease.  

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.