Employment Law and Human Resources Updates
Now that the dust has settled in Sacramento, we briefly review several of the most significant developments applicable to private employers operating in California. These changes will possibly require an update of your Employee Handbook and employment application, creating compensation ranges, and a change to your recruiting and interview process. These new laws will take effect on January 1, 2018.
Salary History & Equal Pay (AB 168). AB 168 prohibits employers from asking job applicants for salary history information. This term includes both compensation and benefits. AB 168 will:
- Prohibit employers from asking about or relying on prior salary information in deciding whether to offer a job and in deciding how much to pay.
- Allow employers to consider previous compensation in their offers if applicants volunteer information on prior pay and benefits.*
- Require that employers provide applicants with the pay scale for a position, upon reasonable request
This will require that you implement some changes in your business, such as:
- Review recruitment and hiring practices to ensure no bias or disparity when making an offer of employment.
- Employment Applications remove any reference to salary history.
- Interview techniques should be revisited and reconsidered.
- Compensation ranges will need to be established, if they are not already.
- If compensation ranges are established, an analysis ensuring the ranges are appropriate is recommended.
Anti-Harassment Training (SB 396)
- Employers with 5 or more employees must prominently post a workplace notice regarding transgender rights (to be provided by the Department of Fair and Equal Housing).
- Employers with 50 or more employees must include training addressing harassment based on gender identity, gender expression, and sexual orientation.
- Training must be conducted by educators with knowledge and expertise in these topics and must include practical examples.
This new requirement means that you will have to review and update your current Harassment Prevention Training to ensure it addresses harassment based on gender identity, gender expression and sexual orientation, and that you obtain updated posters to display in your business.
Construction Contractor Liability (AB 1701).
- Direct contractors must assume and are liable for unpaid wages, benefits, or contributions that a subcontractor owes for labor connected to the contract.
- Subcontractors are required to provide applicable payroll records upon a direct contractor’s request.
To comply with this law, you should review current contracts for verbiage regarding liability.
Criminal History (AB 1008).
- Employers in California with 5 or more employees are forbidden from asking an applicant to disclose conviction information until the applicant is determined qualified for the position.
- Consideration of an applicant’s criminal history will be permissible only after the employer has made a conditional offer of employment.
- Once that offer has been made and the criminal history obtained, the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment.
Employers that use criminal records to screen applicants should act promptly to review and update their applicant screening procedures. Your current employment application will need to be updated to ensure it does not ask for criminal history; misdemeanor or otherwise.
Parental Leave (CFRA) (SB 63).
California employers must provide employees with 12 weeks of unpaid, job-protected parental bonding leave and maintain and pay for the employee’s continued coverage under a group health plan at the level and under the same conditions that coverage would have been provided had the employee continued to work.
- This applies applies to private, state and municipal employers who directly employ 20 to 49 employees within 75 miles of each other.
- Who is eligible? Employees with more than 12 months of service and at least 1,250 hours of service with the covered employer during the 12-month period prior to commencing leave.
- Employees are entitled to utilize any type of accrued paid time off, such as paid vacation and sick leave, during the parental leave.
We recommend that you review and update all leave policies in the company Employee Handbook to ensure they are in alignment with current California laws. You will also have to re-evaluate any requests for a leave beginning on or after January 1, 2018.
But wait! There’s more… If you call us by January 1st, 2018 for a handbook revision or compensation analysis, we will offer you a 10% discount for your resolution and commitment to the new laws and your business acumen in the new year.
Call us at 888-220-9286 or email firstname.lastname@example.org to set up a time to talk to a HR Consultant about how these changes affect your business in the upcoming year, or any other HR or Recruiting needs.
Being a good manager isn’t necessarily just about knowing the ins and outs of a specific business, or about being in the same industry for a certain number of years. The things that separate good managers from those who are simply mediocre often have less to do with experience in the industry, but rather have to do with a manager’s overall leadership style and approach. So what could some of our managers with impressive resumes but with less than impressive management skills be doing wrong? Here are 4 of the most common mistakes mediocre managers make:
- MICROMANAGEMENT: Micromanagement saps the enthusiasm and energy from employees by creating the impression that they aren’t valuable or even in control of their own projects. Given enough time, the resulting disengagement can both negatively impact the team’s quality of work, as well as have a pronounced effect on retention. It is key for managers to set clear expectations so employees know what they are supposed to do, and then trust them to complete the task.
- NOT MAKING THE TRANSITION FROM WORKER TO MANAGER: Some of the most talented employees from a technical perspective become the worst managers because they fail to realize they are now responsible for the results of a group of people, not just themselves. These types of managers often also have a hard time delegating responsibility, causing them to get caught up in mundane tasks versus focusing on the big picture and overall strategic values of the team.
- THROWING EMPLOYEES UNDER THE BUS: Rather than taking responsibility for the areas they manage, some managers blame particular employees when things go wrong or when confronted by executive leadership. When a manager participates in workplace gossip, constantly blames employees and/or fails to take responsibility, respect and support for that manager is lost from both executive leadership and the manager’s subordinate team.
- NOT OFFERING RECOGNITION: Managers who fail to show appreciation of their team or of an individual’s work, especially if they go above and beyond their daily responsibilities, can result in disengagement and resentment over the long term. Managers must take the time to recognize employees’ efforts as such recognition can enhance engagement and the feeling of pride and attachment to one’s work.
Not sure how to help your managers get to the next level of leadership skills and communication? SDHRC can help move your Managers to Leaders! SDHRC’s goal is to empower New Managers, High Potentials, Mid-Level Managers and Senior Executives to enhance their toolbox to become a Great Leader or Coach. We provide eye-opening, engaging, thoughtful, interactive and fun training sessions utilizing role-plays and realistic scenarios that match your organization and culture.
Contact us today at 888-220-9286 for more information!
Avoid Common Wage Theft Fines with Proper Overtime Calculation
California enforcement agencies continue to target employers who commit “wage theft.” What is wage theft you ask? Generally, “wage theft” is a phrase used to refer to infractions of the California Labor Code involving the payment of wages to workers (i.e. failure to pay overtime, minimum wage, all hours worked etc). Employers found to be committing wage theft are not only required to pay any unpaid wages and/or overtime due, but they are also required to pay liquidated damages, waiting time penalties and civil penalties. These fines add up quickly, and ultimately end up costing employers thousands, if not millions of dollars!
The miscalculation of overtime is one of the most common wage theft violations employers are faced with. There are several important rules that must be followed when calculating overtime pay in California, and enforcement agencies will certainly not accept an employer’s “But, we didn’t know” excuse if they are found to have violated the overtime rules.
Are you confident you are following all the rules, or could you be at risk? Find out with this quick review of California’s overtime requirements:
When does an employee qualify for overtime?
- Employees are to paid overtime at a rate of 1.5 times their normal rate of pay when they work more than 8 hours in a workday, more than 40 hours in a workweek, or work on their seventh consecutive day of work.
- Employees are to paid double-time (2 times their normal rate of pay) when they work more than 12 hours in a workday or work more than 8 hours on their seventh consecutive day of work.
What constitutes a workday or a work week?
- A workday is 24 hours long. It can start at any point in the day, but all workdays should start and end at the same time (this need not correspond with the start of an employee’s shift).
- A workweek is seven consecutive 24- hour periods, which should start and end on the same day and time each week.
What if an employee receives two different rates of pay during their 40 hour workweek?
- Their overtime is calculated using a weighted average of the two rates of pay, which is determined by dividing your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours.
For example, if you work 32 hours at $11.00 an hour and 10 hours during the same workweek at $9.00 an hour, your weighted average (and thus the regular rate for that workweek) is $10.52. This is calculated by adding your $442 straight time pay for the workweek [(32hours x $11.00/hour) + (10 hours x $9.00/hour) = $442] and dividing it by the 42 hours you worked.
If an employee takes a vacation/sick day or receives holiday pay, are those hours counted towards their overtime calculation?
- No, only hours that the employee physically works are counted. Vacation, sick or other non-working hours received by the employee are to be paid at straight time and are not to be considered hours worked.
If an employee works unauthorized overtime is the employer obligated to pay for it?
- Yes, California law requires that employers pay overtime, whether authorized or not.
Does overtime need to be considered when giving an employee a bonus?
- This depends. Discretionary bonuses (given at Christmas or other times of the year that are not tied to hours worked or performance) need not be considered when calculating overtime, but non-discretionary bonuses (given based on the number of hours that have been worked and/or the quality of the work that an employee has done) do need to be considered. This can get complicated! We strongly advise that you seek our help or otherwise on this if you are unsure.
Still not sure if you got this? We can help! Call us at 888-220-9286 or 760-438-8046 or email us at email@example.com.
How is a manager, business owner or executive to stay on top of all the laws and potential risks while also staying on top of everything else?
Though overwhelming, it’s important to at least know some of the basics. In an attempt to make this a bit easier, we came up with a quick list of what we feel are the top 5 most important, yet not always obvious, risk categories to be familiar with so you and your managers stay out of trouble:
1. Be familiar with the list of California’s list of protected categories: Ensure that you are not firing, disciplining, choosing not to hire, or otherwise neglecting an employee who could claim your actions were due to discriminatory reasons such as: race, color, ancestry, national origin, religion, sex (including pregnancy, childbirth, and related medical conditions), disability (physical or mental), age (40 and older), genetic information, marital status, sexual orientation, gender identity and gender expression, AIDS/HIV, medical condition, political activities or affiliations, military or veteran status, or status as a victim of domestic violence, assault, or stalking.
2. Know the Difference Between Exempt vs. Non-Exempt: Employers must recognize that meeting the minimum salary threshold does not automatically make an employee exempt from overtime. Exempt employees must first pass the executive, administrative or professional duties test as defined by federal regulations. If an employee does not pass one of these duties tests, they need to be classified as non-exempt and therefore are entitled to overtime pay. It is also important to note that although the federal minimum salary threshold is $23,660, the minimum salary threshold for California is $43,680.
3. Ask Appropriate Interview Questions: Asking a candidate the wrong interview questions can be dangerous and can quickly be perceived as discriminatory. You will want to avoid questions (including questions on your application) that relate to any of the potentially discriminatory categories mentioned in #1 above. Here are some examples of questions to avoid: “What country are you from?” (national origin), “Which religious holidays do you observe?” (religion), “What year did you graduate?” (age), or “Is this your maiden name?” (marital status).
4. Know When to Grant a Leave of Absence: There are numerous types of leave employers are required to grant employees. Some of the most common types of leaves applying to most CA employers include:
- Pregnancy Disability Leave (required in CA if you have 5+ employees)
- Military Leave (required of all employers)
- Paid Sick Leave (required of all CA employers and includes different mandatory accrual rates in different cities)
- Worker’s Compensation Leave (required of all employers)
- ADA & FEHA Leave/Accommodation (required in CA if you have 5+ employees)
Other important leaves that may also apply include FMLA/CFRA, Jury Duty, Witness Duty, Crime Victim, Domestic Violence/Sexual Assault/Stalking Victim, Military Spouse, School Activity, Voting, Volunteer Emergency Personnel, Alcohol/Rehab, and Organ Donor Leave. If you are faced with a request for any of these types of leaves and are unsure of the requirements or of how to accommodate them, we strongly suggest you seek professional help from a company such as SDHRC before administering.
5. Make Sound Terminations: Some of the most important things to remember when separating someone:
- If you are performing an involuntary termination, you will want to first assess your risks. Check to see if any of the discrimination categories listed in #1 above apply. Also, if the employee has recently voiced a major complaint or concern, you will want to assess whether or not they could claim that the termination is a form of retaliation.
- Provide employees with all required forms, including the DE2320, DHCS 9061, Notice to Employee and COBRA information.
- Pay out any accrued vacation or PTO days on the final check.
- If the employee gives at least 72 hours notice or if you are terminating them, you must provide them with their final check on their last day of work. If the employee quits on the spot, you have 72 hours to provide them with their final paycheck. An employee is entitled to an additional day of pay for each day their check is late.
Still overwhelmed or confused? That’s why we are here! Always feel free to reach out to us for more help. Call us 888-220-9286 or at 760-438-8046 or email us at firstname.lastname@example.org.