functional area #1 - compensation and wage hour - p2€¦ · functional area #1 - compensation/wage...

1©2017 TPO - The HR Experts All Rights Reserved. www.tpohr.com

Functional Area #1 - Compensation/Wage and Hour – P2

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FUNCTIONAL AREA #1

COMPENSATION & WAGE HOUR PART II

Presented by:

Gina de Miranda, M.A., SPHR-CA, SHRM-SCPTPO Bilingual Consultant

PHRca [email protected]

©2017 TPO - The HR Experts All Rights Reserved. www.tpohr.com

What law requires employers to definethe work day and work week? What is the purpose of this law?

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WORK DAY AND WORK WEEK


WHEN MUST A REST PERIOD BE TAKEN?

All nonexempt employees are entitled to one (1) ten (10) minute rest break for every four (4) hours worked, and two(2) ten (10) minute rest breaks for an eight (8) hour workday.

The rest break(s) should fall as close to the middle of the work day, or in the middle of each four (4) hour period if working full-time, as possible. Employees whose shifts are completed within three and a half (3 ½) hours are not entitled to a rest break. These rest periods are compensated time and should not be deducted from an employee’s earnings.




MEAL PERIODS


• Nonexempt employees are entitled to one (1) thirty (30) minute meal period for any work period that is more than five (5) hours long. The ONLY exception is when a period of six (6) hours will complete an employee’s shift.

- In this circumstance the required meal period may be waived by mutual consent of the employee and the employer.

• Employee’s MUST be relieved of ALL duties while on their meal period.


MEAL PERIODS Cont…

• Employees who work between ten (10) and twelve (12) hours are required to have a second thirty (30) minute meal break.

• Any employee who works over twelve (12) hours is required to taketheir second meal period.

The employer must pay the employee one (1) hour of pay at their regular rate for each workday that they are NOTprovided their rest or meal period. Meal and rest breaks CANNOT be combined.

ALTERNATIVE WORKWEEK SCHEDULE


Name Sun Mon Tue Wed Thu Fri Sat ST OT 1.5X

DT 2X

Joe Garcia 10 10 10 10 40

Sharon Tan 10 10 10 10 40

Margie Smith 10 10 10 10 4 40 4

Jackie Martin 10 10 10 4 4 38

Jerry Ramon 10 10 10 10 40



DESCRIBE THE ADOPTION PROCESS FOR AN ALTERNATIVE WORKWEEK

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• Written proposal to the affected work group

• Hold meeting(s) to discuss how the proposed change will affect their wages, hours and benefits

• Secret ballot vote

• Register the Alternative Workweek with the DIR within thirty (30) days


DESCRIBE THE REPEAL PROCESS

• One-third of affected employees must request repeal of the schedule.

• Secret ballot vote (two-thirds of the affected employees vote in favor of the repeal).

• Employer must comply within sixty (60)days.


OVERTIME – TIME & ONE HALF

• Hours worked over eight (8) hours in one (1) day

• Hours worked over forty (40) straight time hours in one (1) workweek

• The first eight (8) hours worked on the seventh (7th) consecutive workday in the workweek




OVERTIME – DOUBLE TIME

• Hours worked over twelve (12) hours in one (1) workday

• Hours worked over eight (8) hours on the seventh (7th) consecutive workday in the workweek


OVERTIME WITH TWO JOBS orRATES OF PAY

Mon Tue Wed Thu Fri Sat Sun TOT HR Total

Regular@ $25 6 5 8 8 7 34 $850.00

Travel @ $10 3 2 3 8 $80.00

Total Hours 9 7 8 8 10 42 $930.00

Blended rate of

$22.14 * .5 x OTTOTAL $963.21


HOW MUCH TIME MUST BE PAID fora SPLIT SHIFT and at WHAT AMOUNT?

12

1 hour Split Shift pay


8:00 a.m. to 12 noon

4:00 p.m. to 8 p.m.



WHAT IS ON-CALL PAY?

• Organizations that require their employees to be on-call during off hours may be required to compensate them for their time.

• If the employee is required to remain on the employer’s premises or the employee’s ability to conduct personal business is impacted by the on-call work (such as they need to be able to report to the workstation with thirty (30) minutes of receiving a call), then they are expected to be compensated for this time.

• On-call time may be compensated at a rate less than the employee’s regular rate of pay, but NOT LESS than minimum wage.


• Reports to work with no work available.

• Reports to work and is terminated.

• Half of their scheduled work time with no lessthan two hours and more than four hours.


REPORTING TIME PAY

• Acts of God

• Utility failure

• Employee threatened

• Employer required to cease operations by a local state or federal government agency


EXCEPTIONS TO REPORTING TIME



MAKEUP TIME

Employees are allowed to request makeup time if they are unable to work a full shift under certain circumstances.

– This time needs to be requested in writing and in advance by the employee, and needs to be completed within the same workweek as the time off.

– An employer may inform an employee of this option, but may not encourage or solicit the employee to utilize makeup time.

– It is the employer’s responsibility to keep detailed documentation of makeup time requested and worked.


MAKEUP TIME Cont….

• May not permit an employee to work in excess of:– Eleven (11) hours in one (1) workday OR– Forty (40) hours in one (1) workweek.

• Time worked in excess of eight (8) hours in one (1) workday is NOT considered overtime if it IS makeup time.


• Paid for traveling for work

• Pay can be a lower rate than normal but not less than minimum wage


TRAVEL TIME



COMMISSION

• Payment based on a percent of Sales

• In California commissions are considered wages

• Commission Agreements must be:

⎯ In writing

⎯ Specific to the employer and employee

⎯ Detailed

⎯ Signed by both employee and employer

⎯ Both parties should retain copies of the agreement


ADVANCES, DRAWS & GUARANTEES

• Must be paid at least minimum wage

• Outside sales people must be paid at least 1½ times minimum wage

• Advance, draw or guarantee


PIECE RATE – AB1513

• Employees are paid by the piece or other measure of productivity

• Must earn at least minimum wage

• California - rest and recovery periods must be paid




FAIR PAY ACT – SB 358

• Employees may NOT be prohibited from discussing salaries

• Seniority Systems

• Merit Systems

• System measuring earnings

– by quantity and quality

• Differential based on bonafide factor

– other than sex

– education training or experience22


CHEERLEADERS – AB 202


• Effective 2015 all cheerleaders for the state's professional sports teams have been reclassified as team employees, guaranteeing them worker protections such as fair pay, overtime, and sick leave.

• California is the first state to make it illegal for teams to treat cheerleaders as independent contractors in order to keep them ineligible for minimum wage or other worker protections.

PAYMENT for TIME NOT WORKED


• Under California law, employers are required to provide their employees sick time in the amount of at least three (3) days (twenty-four (24) hours) per year.

• Organizations are not required to provide vacation or any additional amount of Paid Time Off (PTO).

- If additional paid time off work is provided, there are certain laws they must follow in its implementation.



VACATION & PTO

• Vacation and PTO are considered wages under California law and therefore must be accrued to show earnings.

• It must be paid out at the time of termination

• It is also ok to pay out earned vacation at the end of each year.


HOLIDAY PAY

• Holiday pay is not mandatory, but if an employer does provide holiday pay, it is paid at the employee’s regular rate of pay.

• Organizations may or may not have time and ½ or double time pay for those that work on holidays.

• Organizations with union agreements will mostlikely have double time for worked holidays.


PAID SICK LEAVE (PSL)

• California’s Healthy Workplaces, Healthy Families Act REQUIRES ALL Employers to provide twenty-four (24) hours, or three (3) days, of paid sick time to every employee.

• Paid sick time is not considered wages, and does not have to be paid out at the time of separation.

• When utilizing paid sick time, an employer should be compensated at their regular rate of pay.




SICK PAY CALCULATIONS

If the employee received variable rates of pay, the employer can decide to utilize one (1) of two (2) methods:

1. Average of straight time wages over the immediate 90 days preceding the use of the sick time.

2. Average of straight time wages of the pay period for which sick time is being used.


COMPENSATORY TIME OFF

• May be used in limited circumstances upon Employee Request in lieu of overtime.

• Basically illegal in California.


• California law requires that pay day, time and location are posted where employees can see it.

• If the regular pay day falls on a holiday, employers may delay pay until the next business day or advance it to the day before the holiday.


TIMING OF PAY



REGULAR PAY DAYS

• Wages earned between the 1st and the 15th

– No later than the 26th

• Wages earned between the 16th and the last day of the month

– 10th day of the next month

• Weekly, biweekly, semimonthly

– Within 7 days of the end of the pay period

• Exempt Employees

– Monthly before the 26th of the month


OVERTIME PAY

Can be delayed to the next pay period


FINAL PAY DAY

• Voluntary separation with notice

– On the last day worked

• Voluntary separation without notice

– Within 72 hours of last day worked • Payments must be ready and available at the

employer’s place of business

• Involuntary termination

– On notice: last day worked




FINES & PENALTIES for NON-COMPLIANCE

• Initial Violation:

– $100 per instance, per employee

• Subsequent violation

– $200 per instance per employee plus 25% of the amount withheld

• Waiting time penalty

– Equal to the employee’s regular rate of pay for each daythat payment remains unpaid up to a total of 30 days.


PERMITTED PAYROLL DEDUCTIONS

• State or Federal Required– Income tax, Social Security, Medicare, SDI

• Wage Garnishments– Child Support, alimony, spousal support,

other legal obligations

• Employee Contributions– Benefits, Union Dues, Repayment of

Employee Loan


PROHIBITED PAYROLL DEDUCTIONS

• Dishonest or Willful Acts– Gross Negligence

• Reimbursement of Overpayment of Wages– Must be approved in writing

• Meals and Lodging– Pursuant to specific wage orders

• Unreturned Tools/Uniforms– Signed advanced notice




• 25 percent or 40 times minimum wage (whichever is less)

• Child support can be up to fifty percentof the employee’s check


GARNISHMENTS

BUSINESS EXPENSE REIMBURSEMENT

The 4 most common reimbursements• Mileage

– It does not include time spent driving to the workplace or home from the workplace.

– It does include mileage from the employee’s home to a job site.

• Cell Phone– Even if the employee has an “unlimited plan,” but is using the phone for work-

related purposes, the employer needs to provide some reimbursement.

• Training

• Vehicles– Vehicle reimbursement cannot be just gasoline, it has to take into account

depreciation of the vehicle and maintenance.


California employers must reimburse all expenses to employees that are used to perform their job.

• Legal Name

• Address

• Occupation

• SSN

• Minor Designation

• Start & End Times

• Meal Periods

• Split Shifts

• Total Hours Worked

• Rate of Pay

• Piece Rates

• Deductions


TIMEKEEPING

California law requires employers to keep accurate time keeping records for each nonexempt employee



ROUNDING PRACTICES


California law allows employers to round to the nearest 5 minutes, 1/10th or ¼ of an hour.

OFF the CLOCK WORK


• Employees must be paid for “off the clock work.”

• Employers must have a policy that communicates that employees will be disciplined for performing work “off the clock.”

LEAVE RECORD KEEPING


• California employers are required to maintain proper leave records.

• If the Labor Commissioner requests to view payroll records and the employer is found to not have accurate records the employers can be subject to civil penalties of $500.



• Notice to Employee Change of Status Form

• Pay Stubs

Employee Pay Hrs Amt Deductions AmtEmployee-Paid Taxes

AmtCompany-Paid Taxes

Amt

Sample:Karen P. Net: $1176.06 3/11/2016 02/21/16 - 03/05/16

Regular 49.50 $891.00 FIT $170.48 FUTA $0.00Training 1 2.00 $100.00 SS $124.91 SS $124.91

Consulting 0.00 $0.00 Med $29.21 Med $29.21Training 2 4.00 $375.00 CA PIT $85.19 CA ETT $0.00OT 0.00 $0.00 CA SDI $18.13 CA SUI $0.00Sick 3.75 $92.10

Bonus 0.00 $300.00Total

Grand Total $1,758.10 $427.92 $154.12


INDIVIDUAL NOTICES & PAY STUBS

POSTINGS & NOTICES


California employers are required to post numerous notices pertaining to federal and California labor law where all employees can see them.

• Maintain for four years after termination.• Exceptions:

‐ Job injuries causing loss of work time‐ 5 years

‐ Pension and Welfare plans‐ 6 years

‐ Safety and toxic chemical exposure‐ 30 years


DOCUMENTATION & RECORDS RETENTION



ELECTRONIC RECORD KEEPING


Electronic record keeping is allowed in California as long as they are sure they are following the required protocol for storage of specific, and potentially confidential information.


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