1/15/2018 - employers · employees or employee’s authorized representative (i.e. union) a copy of...

1/15/2018

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Supporting Employers

with Human Resource

solutions since 1937

www.employers.org employers.org 800.399.5331

2018 LABOR LAW UPDATELET CEA BE YOUR GUIDE

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CEA Introduction & Disclaimer

• Providing HR support for employers since 1937 • Available Over the Phone, Online or Onsite• Subject Matter Experts & In House Attorney• Training-Compliance-Investigations-Recruiting

This presentation should not be relied upon as

legal advice. Consult any attorney about any

issues of legal significance to you.

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Today’s Topics

• Wage and Hour

• Hiring Practices

• Parental Leave

• Immigration Protection

• Harassment/Discrimination

• Various Additional Updates

employers.org 800-399-5331

1/15/2018

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4www.employers.org 800.399.5331

Wage and Hour Laws

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SB3: Minimum Wage Increase

www.employers.org 800.399.5331

WHY?Gov. Brown established

a mandatory wage

increase (SB3- 2017)

All employees

earn at least $15/hr by

2023

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2018 Minimum Wage Increase


January 1st Small Employer Large Employer

2018 $10.50 $11.00

2019 $11.00 $12.00

2020 $12.00 $13.00

2021 $13.00 $14.00

2022 $14.00 $15.00

2023 $15.00 $15.00

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3 of the Minimum Wage Impacts


Overtime (1.5x)

Double Time(2x)

ExemptWage Test

25 or Fewer Employees

$15.75 $16.50 $43,680(was $41,600)

26 or MoreEmployees

$16.50 $22.00 $45,760(was $43,680)

• Consider Travel Time Pay impacts

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Who’s Exempt?

¤ Administrative¤ Executive

¤ Professional

¤ Computer Professional ($42.35/hr.; $88,088)

¤ Physicians ($77.15/hr.; $160,472)

¤ Commissioned Sales People

¤ Exempt worksheets are available on CEA Website

q Non-exempt until classified otherwise.

q Employees must pass both a duty & salary test.

q Salary Test:2 x State Min Wage x 2,080 hours

q $43,680 0-25 employeesq $45,760 26+ employees

Types of Exemptions Qualifications

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29 Cities and Counting…


¨ Berkeley, Cupertino, El Cerrito, Emeryville, Long Beach, Los Altos, Los Angeles City and County, Malibu, Milpitas, Mountain View, Oakland, Palo Alto, Pasadena, Richmond, San Diego, San Francisco, San Jose, San Leandro, San Mateo, Santa Clara, Santa Monica, and Sunnyvale.

¨ Hotels in Long Beach, Los Angeles, Santa Monica

¨ Great fact sheet on our website – HR Answers/Additional Resources

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2018 IRS Mileage Rate

Standard mileage reimbursement rates for the use of a car (van, pickup or panel truck):

• 54.5 cents per mile for business miles driven (up 1 cent)

• 18 cents per mile driven for medical or moving purposes (up 1 cent)

• 14 cents per mile driven in service of charitable organizations (same as 2017).

employers.org 800-399-5331

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Employer Checklist – Wage & Hour

ü Check your local city/county ordinances

ü Check your salaried (exempt) employees to ensure they are earning the minimum requirement

ü Give raises as needed or make exempt employees non-exempt

ü Complete exemption sheets as needed

ü Look ahead to next year’s budget and 2019 min wage increases.


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Don’t Ask About…


Criminal History

Salary History

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AB 1008: Ban-The-Box


WHY?

Provides all

applicants with a fair chance at

jobs

¨ Prohibits employers with 5+ employees from asking about criminal convictions on job applications

• Exemptions:

• Government agencies are required by law to check conviction history

• Farm Labor Contractors

• Positions where the law requires employers to check criminal history

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Employers May NOT:


¨ Ask about criminal conviction history information on job applications or in interviews until an offer of employment is made

¨ Once an offer is made, employers cannot consider:

¤ Arrests not resulting in a conviction

¤ Referrals to pre-trial/post trial diversion programs

¤ Convictions that are sealed, dismissed, expunged or removed by statute.

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Employers MAY:

¨ Ask about past criminal history once a conditional job offer has been made.

¨ Deny employment if the conviction history has a “direct and adverse relationship with the specific duties of the job” (Ex: driver position and past DUI)

¨ Employer assessment must consider:

¤ Nature and gravity of the criminal offense

¤ Time that has passed since offense

¤ Completion of sentence

¤ Nature of job applied for

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If you deny employment…


1. You must provide a written notification of this preliminary decision and include:q the conviction that is the basis for your decisionq a copy of the conviction history report (if any)q an explanation of the applicant’s right to respond to

the notice within 5 days and their option to challenge the accuracy of the conviction history

2. If you still deny employment – final letterq “Adverse Action Notice” required in writing

q Let the applicant know they can file with DFEH

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AB 168: No Salary Information

WHY?

Women earn 79 cents on the dollar compared to men*

¨ Prohibits ALL employers from asking about or relying on an applicant’s salary history as a factor in hiring.

¨ Employers must provide, upon request, a position’s pay scale information

¨ If an applicant voluntarily and without prompting discloses past salary info? Be careful…

*http://www.businessinsider.com/gender-wage-pay-gap-charts-2017-3

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Employer Check List - Hiring


ü Job Applications – remove all criminal and salary history questions

ü Check applicant tracking systems that ask these questions

ü Review background check processes/documents

ü Revise interview templates

ü Review recruiter scripts and processes

ü Analyze your compensation guidelines and consider listing a salary range for open job positions

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Why a Compensation Analysis?


q To be sure you are not paying too little, too much, (inequitably)

q To be able to recruit, engage, reward, and retain the right people

q To streamline your pay program and make it more effective

q To improve employee and organization performance results

q To have compensation information if an applicant requests it

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Sample Assessment


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Parental Leave – Baby Bonding Time

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SB 63: New Parent Leave Law


WHY?

Expansion of leave

for parents

who want baby

bonding time

¨ Expands parental leave coverage

¨ Employers with 20-49 employees now must allow up to 12 weeks New Parent Leave time

¨ Employers with 50 or more employees fall under CFRA and already offered this

¨ Employee eligibility: 12 months + 1,250 hours worked + work at a location with 20-49 employees in a 75 mile radius

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AB 908: Paid Family Leave & State Disability Benefits Increase


WHY?

Makes SDI and PFL

more meaningful

for low wage

workers.

¨ Effective 1/1/18

¨ Increases wage replacement for PFL and SDI from 55% to:¤ 60% or 70% depending on income –

calculation is on the EDD website

¨ Eliminates one week waiting period from Paid Family Leave claims

¨ San Francisco employees may receive additional compensation from their employers.

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Forms on the CEA Website

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Employer Checklist – Family Leave

ü Revise your employee handbook

ü Make sure you have appropriate forms

ü Employers with 20+ ee’s have to offer PDL+ Parental Leave (7 mos. Off)

ü Both parents qualify for Parental Leave

ü 12 weeks total leave if both parents employed by you

ü Continue Health Plan Coverage

ü OK to recover the employee’s costs in limited circumstances


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California = Sanctuary State

Protecting criminals

Protecting hardworking

immigrants here illegally

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AB 450: Immigrant Worker Protection


WHY?

Gov. Brown wants to provide

protection to DACA

immigrants and the public

The California Immigrant Worker Protection Act requires employers to:

q Ask for a warrant or subpoena before granting ICE access to a worksite or employer documents (except I-9s)

q Notify employees

q Provide employees with inspection results

q Imposes penalties for employers who refuse to abide by AB 450

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New Posting Requirement


¨ Within 72 hours of receiving an Notice of Inspection, employers must post a notice* in the language normally used to communicate information to employees with the following:¤ The name of the agency who has issued the Notice

and will inspect the I-9 forms or other records¤ Date Notice was received¤ Nature of the inspection ¤ Copy of the Notice

*The Labor Commissioner is required to publish a template for employers to use by July 1, 2018.

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New Notice Requirements


¨ In addition to the posting, within 72 hours of receiving the Notice:

¤ Employer must provide affected current employees or employee’s authorized representative (i.e. Union) a copy of results and notice of employer/employee obligations.

¤ CEA members can access a sample notice on our web site.

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Fines and Penalties

1) First violation: $2,000-$5,000

2) Further violations: $5,000-$10,000

3) Labor Commissioner to recover penalties


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No Re-Verifying Eligibility


Except as otherwise required by federal law, employers cannot re-verify the employment eligibility of a current employee at a time or in a manner not required by federal law.

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Reminder on I-9’s


WHY?

USCIS will audit

your files.

Avoid fines!

¨ Form I-9 Employment Eligibility Verification was revised on 9/29/17

¨ Use this form for new hires only, no need to revise past I-9 forms

¨ We recommend annual I-9 audits

¨ Current I-9 available on CEA website

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Employer Checklist - Immigration

ü Educate front office staffü Educate supervisors and

managersü Have postings readyü Have letter ready – see

CEA Sample letter at employers.org under Forms & Fact Sheets

ü Conduct an I-9 Audit


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Harassment Prevention Training

WHY?

To prevent workplace

harassment of lesbian,

gay, bisexual and

transgender (LGBT)

employees.

¨ SB 396¨ Update AB1825 training to include

practical examples to address harassment based on¤ Gender identity¤ Gender expression¤ Sexual Orientation

¨ New Poster also required, see CEA website ¤ https://www.dfeh.ca.gov/wp-

content/uploads/sites/32/2017/11/DFEH_E04P-ENG-2017Nov.pdf

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Transgender Regulations

¨ Provides equal access to use of facilities such as restrooms or locker rooms

¨ Prohibits asking for proof of gender, sex, gender identity or expression

¨ Requires honoring employee’s request on how to be identified

¨ Protections for individuals who are “transitioning”

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Facilities Usage


¨ Regulation indicates, under FEHA, employee can use restroom/locker room that corresponds to their gender identity or expression

¨ Employee cannot be required to provide proof of any medical treatment or procedure in order to use the facilities requested

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Single User Bathroom

¨ AB 1732-Effective March 1, 2017

¨ All single-user toilet facilities must be identified as “all-gender” toilet facilities

n Does not apply to multi-stall restrooms

¨ Businesses are not required to add/remove existing restrooms or alter current structures

¨ “Porta Potty” Exception

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SB 306: Retaliation & the Labor Commissioner

¨ Division of Labor Standards Enforcement can now investigate an employer – even without a complaint

¤ if there is suspicion of retaliation or discrimination during a wage claim,

¤ during a field inspection or;

¤ In instances of suspected immigration-related threats.

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Employer Checklist – Harassment Prevention


ü Update your Harassment Prevention Training

ü Consider training all of your employees

ü 1 Hour training options for managers and employees if you have fewer than 50 ee’s

ü Post new transgender noticeü Educate your managersü Check your bathroom signs

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Reminders on Additional Updates

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Prop 64: Adult Use of Marijuana Act

¨ Permits recreational use of marijuana for adults age 21+

¨ No impact on Employer Drug Free Workplace Policies

¨ No requirement for accommodations for medical marijuana

¨ Still a Schedule 1 narcotic (i.e. heroin, meth) – Federally illegal

¨ Treat marijuana and alcohol usage the same in the workplace


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¨

¨

1.

2.

3.

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¨ An employer is to “authorize and permit” an employee to take ten minutes “net” rest time for every 4 hours worked

¨ Rest periods need not be recorded on time cards

¨ NEW DLSE Interpretation of Augustus v. ABM –“…employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”

Hours WorkedRest

Periods

0 – 3.5 0

Over 3.5 up to 6 1

Over 6 up to 10 2

Over 10 up to 14 3

Rest Periods & DLSE FAQ’s

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Paid Sick Leave - Statewide

¨ Required to offer 3 days or 24 hours¤ Must be in effect after 90 days of employment for

all employees

¤ Lump Sum (with no carryover) OR

¤ Accrual Method (1 hour/30 hours worked) with usage cap of 24 and accrual cap of 48 hours –remaining time carries over

¤ Not required to pay out upon termination of employment

¨ Be aware of local ordinance requirements!

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Still Waiting…


¨ California Supreme Court will weigh in on “De Minimus Doctrine” in regards to overtime

¨ Employee sues for “off the clock” work:

¤ Shutting down the computer

¤ Turning on the alarm

¤ Locking doors

¨ Between 2008 – 2010, 12 hours & 50 minutes – or $102.67

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2018 State/Federal Poster

ü Available in English or Spanish

ü Must post in a conspicuous place

ü Post your IWC Wage Order

ü Post the new transgender notice!

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2018 New Years’ Resolutions

ü Invest in yourself

ü Build strong & engaged teams

ü Leadership training

ü Mix compliance with essential skills training this year!



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