Summertime Minimum Wage Increases and National Origin Protections Turn Up the Heat for Employers

June 29, 2018Client Alert
Greenberg Glusker Client Alert

City Minimum Wage Increases

Los Angeles City and County

Effective July 1, 2018, the minimum wage for employees who work in Los Angeles City and County (Unincorporated) will increase to $13.25/hr. for employers with 26 or more employees and to $12/hr. for employers with 25 or fewer employees. The latter rate also applies to approved Non-Profit Corporations who have 26 or more employees and had previously successfully applied to pay a deferred rate.

The Los Angeles minimum wage rates, which are higher than California and Federal minimum wage rates, must be paid to employees who (a) perform at least two hours of work in a particular week in Los Angeles (either full time or part time), and (b) who are entitled to payment of a minimum wage under state law.

Employers should make sure that they post official notices (which are provided by the City) to notify employees of their rights to minimum wage. Posters should be displayed in all languages spoken by at least 5 percent of the employees at the employer’s workplace or jobsite. English and Spanish posters for 2018 can be obtained here: English  Spanish

Notices in Chinese, Hindi, Vietnamese, Tagalog, Korean, Japanese, Thai, Armenian, Russian and Farsi can also be found here.

Santa Monica and Pasadena

Effective July 1, the Santa Monica and Pasadena minimum wages are also increasing to the same rates as Los Angeles ($13.25/hr. for employers with 26 or more employees and $12/hr. for employers with 25 or fewer employees, while employees at Santa Monica hotels are subject to a different rate set to match Los Angeles Hotel Wages).

Other Cities in California

Employers in other cities, including but not limited to El Cerrito, Emeryville, Malibu, Milpitas, Richmond, San Francisco, and San Leandro, also face minimum wage increases of varying amounts on July 1.

City Minimum Wage Does Not Affect Exempt Salary

In determining the minimum salary to classify employees as exempt from overtime (e.g., under the professional, administrative and executive exemptions), employers should remember that the minimum salary is a monthly salary equivalent to not less than two times the state minimum wage, even if a higher local minimum wage prevails for non-exempt employees. Therefore, the increases under local ordinances will not affect the minimum pay required for an employee to maintain his or her exempt status.

New California Regulations Protecting National Origin

Expanded Definitions

While discrimination and harassment based on national origin have been prohibited under state and federal law for many years, a series of new regulations issued by California’s Office of Administrative Law will broaden the definition of national original discrimination effective July 1, 2018.

The new definition of “national origin” includes--but is not necessarily limited to--the following perceived or actual characteristics:

  • Physical, cultural or linguistic characteristics associated with a national origin group;
  • Marriage to or association with persons of a national origin group;
  • Tribal affiliation;
  • Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  • Attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group; and
  • Name that is associated with a national origin group.

These regulations extend not only to an employee or applicant but also to their ancestors’ perceived or actual birth place, geographic or national origin, ethnicity or tribe, or to their marriage to or association with persons of a national origin group.

The regulations make clear that “national origin groups include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.”

The regulations further prohibit “associational” and perception based harassment and discrimination, such as an employee’s participation in community, religious, educational or other institutions that are identified with, generally used by, or seek to promote the interests of a particular national origin group.

Extra Protections Against Language Restriction and Abilities

Language restriction policies, such as requirements that employees only speak English proficiently, will be unlawful unless the language restriction is justified by business necessity, is narrowly tailored, and the employer can show there is no alternative practice that would accomplish the business purpose of the restriction equally well with a lesser discriminatory impact.

The regulations also provide new protections against discrimination and harassment based on language proficiency, accent, and foreign education and training.

Expansion of Additional Protections

Finally, under the new regulations:

  • Height and weight requirements that disproportionately deter or exclude members of a particular national origin are also unlawful under the new regulations unless the employer can show they are job-related, advance a business necessity, and that the goals could not be more effectively achieved with less discriminatory measures.
  • Employers may not rely on national origin to seek, request or refer applicants or employees to assigned positions, facilities or geographical areas of employment unless they can demonstrate job relatedness or a bona fide occupational qualification.
  • Employers may not inquire into the immigration status of an applicant or employee or discriminate against or harass an individual based on those categories unless otherwise the employer can show by “clear and convincing evidence” that it is required to do so in order to comply with federal immigration law. The regulations clearly prohibit employers from making threats to report undocumented individuals or their relatives to law enforcement based on their immigration status.

While this Alert generally summarizes the key aspects of the regulations, they are more extensive and nuanced in practice. Members of the Greenberg Glusker Employment Department are available to answer any questions that you may have.