Human Resources News

Break the 5 Habits of Frequently Sued Managers

We admit, when it comes to employment laws, the number of issues we need to concern ourselves with can be quite overwhelming.

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 info@sdhrconsulting.com.

New Year, New Laws

The new year is knocking at your door and bringing some new laws your way.  Don’t be caught unaware.  Click on the 2017 Law Link for more information.

GAME CONTINUED, NO OVERTIME JUST YET

On Tuesday, November 22, 2016, a federal court issued a preliminary injunction against the Department of Labor’s (DOL) preventing the enforcement of the new federal overtime rules which were set to go into effect on December 1st.

What Now:

This preliminary injunction stops the overtime rule from taking effect next week to allow the court time to determine the legality of the overtime rule.

Next Steps for You

Take a timeout…for now!  If you have started making changes to become compliant (you early bird you), stop before making any additional and possibly unnecessary changes until the court makes a final ruling.  This includes any planned communications to your employees regarding these changes.

Please add the SDHRC team to your game plan for clarification and support in this undecided game changer.  We will continue to provide you updates as they are announced.  And now back to the commercial…

Can Employers Breathe a Sigh of Relief over Prop 64?

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How can you fire someone for something that is now legal?” This is one of the most common questions California employers are asking in the days since Prop. 64 passed.  Employers’ freedom to screen workers for cannabis is specifically written into Prop. 64, and it might be a key reason it’s now state law. Smoking or ingesting marijuana in public will remain illegal, as well as smoking or ingesting marijuana in places where smoking tobacco is already prohibited. It will also remain illegal to drive under the influence of marijuana. For employers, policies regarding drug possession, use and impairment as well as testing are not compromised with the legalization of marijuana use under Proposition 64.  Prop 64 states it is intended to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The initiative also provides it will not be construed or interpreted to amend, repeal, affect, restrict or pre-empt: “The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law (Section 11362.45).” So as Employers, you can continue to prohibit use, possession and impairment at work and may continue to test for use when appropriate.

Contact SDHRC to ensure your Drug Policy is up to date and will protect you!

Misclassify Misstep

audit

The IRS is on a roll and has promised to conduct over 6,000 random audits over the next several years to determine if businesses have misclassified certain employees as independent contractors. The audits are intended to help close the US. Government Accountability Office’s estimated $15 billion tax gap due to misclassification of employees. In California, the Employment Development Department (EDD) investigates misclassification of employees and, if misclassification is found, can issue an assessment against the offending business to recover tax-related withholding the employer should have paid but didn’t pay (including unemployment and state disability insurance payments, employment training taxes, and personal income tax) AND penalties.  Now, a California Court of Appeal has emphatically warned employers about the administrative steps they must follow if they intend to challenge the EDD assessment in court and seek a refund of the tax related payments.  The steps a business must take to seek a refund after an EDD assessment are well-defined by statute. Miss a step, or get them out of order, and your business may be stuck without a remedy after paying the assessed taxes and potential penalties.   This recent decision is a stark reminder, coming at a time when more and more businesses may face audits on their classification of workers. Contact SDHRC if you receive audit paperwork in the mail and we will walk you through the process!

Sick Time for San Diego – Part 2

A couple weeks ago we notified our San Diego City clients of recent changes requiring San Diego City employers to grant employees 5 days (40 hours) of paid sick leave per year.

Employers are now required to post an annual notice published by the City of San Diego regarding sick leave and minimum wage rights.  At the bottom of this link is a place to select where you may print the required poster to post in your workplace.

Remember! Your sick pay policy must reflect ALL of the new requirements to be 100% compliant  Employers who do not comply can be fined up to $1,000 per violation.

San Diego Human Resources Consulting can draft a policy and update your handbook so you are in compliance.  Contact us today!

Sick Time For San Diego City

Effective July 11, 2016, San Diego City Employers are required to grant employees 5 days (40 hours) of paid sick leave per year.  Other items to note:

  • Accruals of sick pay must carry over into the next year
  • USE of accrued sick pay may be limited to 40 hours per year
  • Sick time will not be paid out when the employment relationship ends, however….
    • Employers should have a separate Vacation and Sick plan.  If PTO is lumped, employers cannot cap accrual and would have to pay out all time when the employment relationship ends (termination)
  • Sick pay can be taken in a minimum of two-hour increments
  • Accrued sick pay must be reinstated if the employee is rehired within six months of separation
  • Accrued sick pay must be reinstated if the employee is rehired within six months of separation
  • Employers are also required to post an annual notice published by the City of San Diego regarding sick leave and minimum wage rights. Employers must also provide each employee at the time of hire or the effective date of the law (whichever is later) a written notice including the employer’s name, address, and telephone number and the employer’s requirements under the law. Translation is required into languages spoken by at least five percent of the employees at a job site.
  • Most important.  Your sick pay policy must reflect this change and be 100% compliant… today!  Employers who do not comply can be fined up to $1,000 per violation

San Diego Human Resources Consulting can draft a policy and update your handbook so you are in compliance.  Contact us today!

DISC ASSESSMENT

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The DISC assessment has been around for quite some time but you may have missed the DISC with birds. If you have taken the DISC assessment, what letter are you and what does it mean to you now? Most people have forgotten and no longer apply it to others or to themselves.

The original DISC theory was founded by psychologist William Moulton Marston during the mid-1920s. Over the years, the theory evolved to become a training and personality assessment tool businesses around the globe used to increase workflow and establish better communication between individuals and departments. Like many tools of the past, this method of training became mundane. Take Flight DISC has a new and refreshing approach so you will always remember your bird and what you need to know to work with others birds.

So, do you think you are Dominant (EAGLE), Interactive (PARROT), Supportive (DOVE) or Conscientious (OWL)? Or could you be a combination?

We all know employees/managers who are self-aware are more likely to maximize their talents, more effectively recognize and manage their challenges, and produce better results.  Self-aware employees work better with their colleagues and promote teamwork at every level of your organization. In return, your company experiences higher morale, lower turnover, and better results. This training will help promote better communication as well as enrich listening, delegation, teamwork, feedback and conflict skills.

Take Flight DISC will provide you the keys to maximizing your potential and improve every relationship in your life.

Contact SDHRC today to find your inner bird and we promise you a fun, energetic and insightful training session with great tools for you and your company.

Bully in the Workplace

Albert Einstein once said, The world will not be destroyed by those who do evil, but by those who watch them without doing anything.”  

As Owners, Managers, Supervisors, and HR personnel, we have an obligation to provide a safe working environment. Bullying has become a popular and sometimes overused buzz word, but lets take a look at bullying in the workplace and it’s very serious implications. 

Workplace bullying can have negative effects on employees such as increased stress, absenteeism, lowered morale, anxiety, high blood pressure and insomnia to name a few.  All of this can ultimately hit a companys bottom line causing high turnover, low productivity, difficulty hiring, and even legal trouble.

You probably thought bullying stopped once you graduated high school. unfortunately, studies are showing bullying is moving from the fourth grade to 40+ year olds.  Most people would agree work can be stressful enough, but adding a bully to the mix can make it unbearable.  According to a study performed by the U.S. Workplace Bullying Survey, 28.7 million U.S. managers and employees witness bullying in the workplace on an on-going basis.

Bullying is a repeated, aggressive behavior intended to hurt another person, physically or mentally, and with the purpose of gaining power over the person being targeted. Given the statistics, you may have a workplace bully. Here are the top four signs of a bully in the workplace:

  1. The Screamer.  Perhaps the most easily recognizable type of workplace bully the Screamer can be loud and intolerable.  This bully tends to get a rise out of humiliating others and enjoys feeling others are scared of them.
  2. The Backstabber.  An employee who will say one thing to one co-worker only to turn around and turn on them any chance they get.  The Backstabber could easily take credit for anothers work since loyalty is not their strong suit.
  3. The Critic. This bullying personality can attack anothers confidence by constant criticism over work performance. The Critic will kill another employees credibility by pointing out any flaw, even if takes falsifying documents or creating evidence to make someone look bad.
  4. The Silent Bully. This personality is usually an instigator who starts conflict with other employees and walks away to see how it will unfold. This bully likes to exploit others and enjoys chaos in the workplace. The Silent Bully is passive aggressive in nature, such as pouting, stubbornness, procrastination, inefficiency, and passive obstructionism.

Additional traits a bully may display:  Charming, obsessed with image, distorts truth and reality, evasive, plays the victim, self-righteous, pompous, hypocritical, two-faced, rumor-monger, passive-aggressive and can pretend to care.

Now what to do after realizing your organization may have a bully?

  • Do not ignore the behaviors. Its best to be firm and direct with these employees and do it without being rude or condescending.
  • Revisit your Handbook and verify it clearly defines bullying and/or harassment. You should also be in compliance with the New April 1, 2016 Regulation on Harassment and Bullying by now. If not, call us!
  • Communicate to all employees regarding guidance and/or training on how to report bullying.  Employees should know how to make a complaint and understand a complaint may be made without any retaliation. Your handbook should have your complaint process clearly defined. If not, call us!
  • Confront a bully? This is the best time to call SDHR Consulting for guidance to understand if this really is bullying, who should talk to the employee, how and what to say, how to document and progressive discipline steps if behavior does not stop.

Dont be caught with a bully in your workplace…… Contact SDHR Consulting for help!

 

How Employers Can Win Unemployment Claims, Saving $$…

Unemployment insurance is a lot like auto insurance.  The more claims you have, the higher your rates.  Employers can save their bottom line and pay a lower tax rate when former employees make fewer claims on the employer’s account.

According to the Labor Department, employers are faced with more unemployment claims than ever before and at the same time, more employers are fighting claims than ever before.

Knowing when to fight claims is the easy part, knowing how to fight claims is the tough part!  There are a lot of gray areas  and employers lose more than two-thirds of the time they contest unemployment claims!

So how can employers increase their chances of winning more unemployment claims?  

The Employment Development Department (EDD) and the Administrative Judges representing EDD are looking for a credible witness who will suit up and show up and complete the required paperwork on time as well as speak the same legal HR terms they do, such as using the words GROSS MISCONDUCT or VOLUNTARY RESIGNATION.  The best witness provides professional and credible representation consistent with the employment practices and policies, all which are supported by the employee handbook and proper documentation on file.

Recently a client asked if they could potentially win an unemployment claim for terminating an employee who breached the Company’s sexual harassment policy for a violation that occurred 6 months previously.  I advised that the Administrative Judge would want to know what led up to the final incident to determine gross misconduct and if there was no final incident, the Judge might further investigate: 1) Did the employee know s/he was wrong? 2) Did the employee do it on purpose? and 3) Did the employee violate a universal law or company policy?  If the employer can not validate these questions, the employee might win the case.

Another client asked when it is appropriate to fight unemployment claims.  This employer had an employee who was underperforming and on a performance improvement plan.  The client asked if they terminated the employee and the employee filed for unemployment, would it be prudent to fight the unemployment claim?

I advised the client that EDD grants unemployment benefits to anyone who is out of work through no fault of their own or if their hours have been reduced and they are physically able to work, actively seeking work and ready to accept work.

Under state and federal laws, employees who are fired for misbehavior or quit voluntarily are NOT eligible for unemployment compensation.  

Just because an employer is not satisfied with the employee’s work performance, this is not a good enough reason for the (EDD) to grant unemployment benefits.  

The cost of unemployment insurance has created an industry of “third-party agents” – companies that specialize in helping employers deal with the unemployment insurance administration. These firms represent employers in disputes with former employees over jobless benefits.  Do your homework!  Some companies will contest every unemployment claim when it is better to focus on providing fair, productive and equitable workplaces with sound business practices leading to less turnover, less claims and savings to the bottom line.

For more information about unemployment claims or any HR matter, contact:  Julie Wootton at San Diego Human Resources Consulting, Inc for a free HR Consultation. 7040 Avenida Encinas Suite 104-41 Carlsbad, CA 92011 760-438-8046 www.sdhrconsulting.com julie@sdhrconsulting.com

The Perfect Personality: Using Personality Tests in the Workplace

I am an Eagle. I am also an ESTJ, an Achiever, and, according to a BuzzFeed food quiz, if I were a type of cheese, I’d be Gruyere. Some of you may recognize these phrases and perhaps identify with some of them. Although personality tests have been around for decades, the trend for companies to use them for hiring and team building purposes is on the rise.  According to the Wall Street Journal “In 2001, 26% of large U.S. employers used pre-hire assessments. By 2013, the number climbed to 57%.” For employers, this is a tool to help strengthen your company. If you’re debating whether or not to jump on the bandwagon, consider some of the benefits and concerns below:

Increased Internal Communication and Understanding

We live in a heavily collaborative world and fluid communication is vital. Sometimes just having a team go through the process of taking a personality test can open dialogue and team-building. Generally, people enjoy talking about themselves and it could be fun to hear what similarities they might have with their co-workers. Additionally, knowing certain traits about a co-worker can help facilitate understanding as to why someone may react and handle a situation a certain way.

 Streamlined Hiring Process

Any hiring manager or HR recruiter knows a single job posting can yield hundreds of applications. Personality tests are a way to help weed out candidates in an objective manner. A basic personality test included in an online application can help pull out those who would be ideal for the role and offer insights into the candidates themselves. Such insight can also aid the actual interview providing the interviewer a basis from which to ask targeted questions in exploring the candidate’s personality. Alternatively, a personality test for top candidates can suggest which person might be the best overall culture-fit for your company.

Results Can Change

A special note to be aware in regards to personality testing is an individual can yield different results at various points in their career or life. Personality traits can also be magnified or minimized depending on the group dynamic. It’s important not to hold too tightly to certain results but view them more as a fluid guide to an individual’s personality.

People May Develop Bias

If you’re using personality tests as a sort of team-building exercise, with newfound understand can also come bias and justification. Once a person knows another’s test results they may develop biases, or alternatively, once a person knows their own results, they may seek to justify behavior. To reiterate the paragraph above, it is important to present results in a positive light as well as encourage your team to view them as a guide rather than a hard rule.

You Can Empower Your Employees to Embrace Their Strengths

In addition to team-building, personality tests can also build the individual. Once a person knows their skill set, they may be empowered to utilize it and take initiative to build upon it. This can also foster a positive work environment where strengths are the focus versus weaknesses.

In a 2011 Forbes article research showed “we stand a greater chance of success if we build on our authentic selves–who we already are–beginning with our innate strengths.”

In other words, knowing your employees’ core talents can help both your company and your employee become more successful by merely building off those talents instead of fixing the negative aspects.

Whether your employees are Eagles or Toucans, ESTJs or INFPs, remember there is no “perfect” when it comes to personality. What these types of tests can offer is an indication of good culture fits for your company and a team ready to tackle problems by using their individual personality traits.

Sources:

http://www.wsj.com/articles/a-personality-test-could-stand-in-the-way-of-your-next-job-1429065001

http://www.helioshr.com/2014/05/pros-vs-cons-of-personality-assessments/

http://www.ehow.com/list_6887288_pros-cons-personality-testing-employment.html

http://www.forbes.com/2011/04/27/employer-employee-focus-on-strengths-not-weaknesses.html

Mutual Benefit

FINANCE: Zebit’s Payroll Lending System Gives Employees a New Work Perk And Retailers a Piece of the Profits on Purchases

San Diego — When San Diego-based lender Global Analytics bought a Philadelphia startup last year, it billed the acquisition as the perfect jumping off point to introduce its product to U.S. borrowers.

Global provided loans to consumers who were unable to get traditional bank loans and who often faced hefty payday lender interest rates. Global focused its efforts in the U.K. and eventually became the country’s second-largest online installment lender with revenues topping $100 million.

Global’s startup target was Workpays.me, which let employees buys appliances, electronics and other retail products with zero interest, paying off the debt through payroll deductions.

“We thought the marriage made in heaven was taking their manual business idea and fully automating it,” said Michael Thiemann, Global’s CEO at the time.

But Thiemann said the automation work required more capital than Global had access to and investors wanted a way to back the venture directly instead of Global overall. So he amicably stepped down to spin off the division, now called Zebit Inc., into its own company.

Zebit launched last month with $10 million in Series A venture capital, backed by Crosslink Capital, Wildcat Venture Partners, Leapfrog Ventures and Correlation Ventures. Global said it is still a significant shareholder though it holds less than half of Zebit’s equity. It deferred all comment on the Workpays integration to Thiemann.

An Employee Benefit
Zebit is offered to companies as a potential employee benefit, like a 401k plan. Employers and workers pay nothing to participate, though employers have to give Zebit access to their payroll system. Zebit’s online marketplace offers thousands of consumer goods, from dishwashers and big screen TVs to living room furniture and children’s toys. Members can buy anything with an interest-free loan, payable over six months, and have a credit line worth 5 percent of their gross annual salary. They have to have been at their jobs for at least one year.

‘Profit Sharing’
Zebit’s products are pulled from a dozen partner retailers, which it declined to name. Zebit makes a profit by sharing sale proceeds with the retailers, while employees pay no interest, fees or late payment penalties. Thiemann said the deal is attractive to retailers because it allows consumers without access to credit cards or with bad credit scores to buy big-ticket items they couldn’t otherwise get. The risk of missed payments is low because Zebit’s new software automatically imports the loan information into employers’ payroll systems.

Thiemann added that while Zebit may freeze the accounts of customers who leave their jobs and stop payment, they will never add late charges or interest payments after the six-month loan term expires.

“We’re trying to build a completely clean brand that earns the trust of employers and employees,” Thiemann said. “Building that brand is worth the extra costs in potential losses. This population will never have a better credit deal than they have with us.”

Products are generally competitive with stores such as Amazon, Target and Lowe’s, though shipping isn’t free and can put total costs above those stores. Some items are more expensive through Zebit, such as a Sharp Aquos 4K TV that cost $2,299 compared with $1,299 at Amazon and $1,699 at Best Buy. Sharp’s suggested retail price is $3,199.

Retailers Look for Volume
Workpays.me had its own proprietary catalog, buying items wholesale and making a profit on the sale price. While Zebit has its own marketplace populated by retail partners, the retailers will also be able to accept Zebit directly on their websites. Thiemann said the retailers, including a $100 million electronics chain, are waiting to see whether Zebit’s volume justifies the investment.

In the future, Zebit hopes to issue consumers physical cards that would allow them to buy goods at participating stores with their Zebit credit line. That was a model Global used in the U.K. with a series of pre-paid debit cards, also called Zebit, loaded with microloans for underserved populations and authorized for use at certain merchants. The program only had limited success because few merchants were willing to accept the cards, according to Thiemann, though he liked the brand name enough to use it for his spinoff.

While benefits such as corporate discounts are relatively common, an executive with San Diego Human Resources Consulting Inc. said formal loan benefits, even with interest, were rare. COO Mike Wootton noted smaller businesses owners sometimes give employees interest-free cash advances and take the money out of future paychecks, but it’s not a formal policy.

“Providing credit to employees for the sole purpose of purchasing merchandise is definitely unique,” Wootton said. “But employers may be concerned about potential liability for the balance of loans if employees are terminated before they’re paid off.”

Zebit has commitments from employers to start offering the benefit next year, giving the company an initial pool of 250,000 consumers. While the loan terms are currently standard for all participants, that could change as Zebit integrates the type of data analytics used by Global to underwrite loans.

“The better the employers, the less turnover, the more tenure, the easier it is to offer this benefit to them, perhaps with better features,” Thiemann said. “After some time, we can analyze the history of transactions and potentially offer better benefits to more employees.”

Keeping Customers Informed
Two benefits that will remain standard are a mobile-accessible account management site, allowing easy access to payment schedules, and financial education and literacy tools. Payday lenders, Thiemann said, don’t have an incentive to present that information clearly.

“We don’t believe this exists in the underserved market today,” Thiemann said. “They don’t want to give you easy account management. We can do it because we’re not charging interest and don’t benefit from late payments.”

San Diego Business Journal reporter, Michael Lipkin interviews SDHRC COO Michael Wootton with his take on Mutual Benefit.

San Diego Business Journal reports

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A SPECIAL 2015 LEGISLATIVE UPDATE

Good news folks! On the last day to act, Governor Brown vetoed AB 465. This bill would have barred mandatory employment arbitration agreements. Governor Brown called AB 465 “a far-reaching approach that has been consistently struck down in other states” for conflicts with federal law. He further noted that, “California courts have addressed this issue of unfairness by insisting that employment arbitration agreements must include numerous protections to be enforceable, including neutrality of the arbitrator, adequate discovery, no limitation on damages or remedies, and a written decision that permits some judicial review and limitation on the costs of arbitration.”

While this is a “win” for California employers, we still advise that you take a very close look at your alternative dispute resolution agreements to make sure they comply with all the legal requirements under state and federal law to actually be enforceable. Unilateral “arbitration policies” buried in employee handbooks will likely never be enforceable.

More good news came from the Governor’s veto of SB 406, which would have expanded the state’s unpaid family leave policy. SB 406 would have expanded the pool of employees allowed to take up to 12 weeks off to care for grandparents, grandchildren, siblings and parents-in-law. The Governor indicated that this proposal would conflict with federal law and could require employers to provide up to 24 weeks of family leave in a year. However, the door may still be open on this issue for future legislation insofar as the Governor noted that he is “open to legislation to allow workers to take leave for additional family members that does not create this anomaly.”

In addition to these two strong veto actions, Governor Brown helped seal the deal in limiting the recoverable penalties under Private Attorney General Actions brought by employees. The Governor signed AB 1506, which gives employers a chance to “cure” technical violations in an itemized wage statement before being subject to costly litigation. There are, however, strict time limitations and notice requirements to prove alleged defects have been remedied. Employers are advised to consult with human resource professionals or legal counsel if they receive any notices about alleged wage and hour statement violations from any source. Because this amendment was deemed urgent, it went into effect immediately. Yippee!

Now, for a little bad news…or is it? California now has one of the most progressive Equal Pay laws in the nation, SB 358. The new law signed by Governor Brown earlier this month mandates equal pay for “substantially similar work,” as well as giving employees the right to compare salaries with co-workers without fear of retaliation. The phrase “substantially similar work” is the kicker. It means that employees do not have to have the exact same set of duties to demand equal pay, but rather they simply need to hold equal “value” to the company. Of course, certain considerations like job seniority and merit pay are still allowed, although the burden will be on the employer to prove that gender was not a motivating factor. Going into this last quarter of 2015, it may be a good idea to audit your labor costs and review your pay scales to ensure compliance with the new law. Of course, SDHR Consulting is here to help!

Employers Take Another Hit

On July 16, 2015, Governor Jerry Brown signed AB 987 providing another shift in favor of employees with retaliation claims.  This new law makes it unlawful  for an employer to discriminate against a person who requests an accommodation  based on religion or  disability.

AB 987 amends the Fair Employment Housing Act (FEHA) under the religious and disability protections to clarify that an employer is prohibited from retaliating or discriminating against an employee for requesting a reasonable accommodation, regardless of whether the accommodation is actually granted.  While many employers already considered such activity protected, it is now officially a legally protected activity within the meaning of FEHA.

This amendment is largely in response to the California Court of Appeals decision in Rope v. Auto-Clor System of Washington, Inc., (2013) 220 Cal.App.4th 635, which found that requests for reasonable accommodation, even repeated requests, did not equal  protected activity.  AB 987 was sponsored by the California Employment Lawyers Association (CELA), who argued the bill will clarify that an employee cannot be retaliated against for requesting a reasonable accommodation for a disability or a religious need.

Do your employees (managers, supervisors, human resources) know how to handle a request for religious or disability accommodation? In light of AB 987 and the heightened sensitivity to retaliation claims, handling these requests correctly has never been more important. Contact San Diego Human Resource Consultants at info@sdhrconsulting or 760-438-8046 for guidance.

PAID SICK LEAVE NEWS ALERT

California is at is again throwing yet another curve ball at the paid sick leave requirements. On July 13, 2015, the Governor signed another bill into law (AB 304) changing some of the paid sick leave requirements effective immediately!

Don’t kill the messenger.  Here are the changes: News Flash Paid Sick Leave.

In a nutshell, we recommend looking at your brand spanking new sick leave policy to see if it will still work best for your operations given some of these changes. You may want to once again merge your PTO if you separated sick and other PTO, and you may also want to change up your accrual method to the new option. Of course, you will want to let your administrative folks know that they don’t have to worry about documenting why someone is using sick leave.

Mandatory Arbitration Agreements May Soon Be History

This year Assembly Bill 465 is making its way through legislative committees and is going strong.  This bill provides for amendments to the Labor Code that would prohibit an employer from requiring a person, as a condition of employment, to agree to the waiver of any legal right, penalty, forum, or procedure for any employment law violations.  It would also prohibit any form of retaliation or discrimination against an employee/applicant for refusing to sign such a waiver.  Only those written agreements which the employer can prove were entered into knowingly and voluntarily, and not made as a condition of employment, will survive.  If AB 465 becomes law, these new provisions will apply to any agreements entered into on or after January 1, 2016, and would impose a $10,000 penalty against the employer for each violation, with the penalty money and reasonable attorney’s fees to be awarded to the employee and/or candidate.  Before then, if employers are serious about using arbitration agreements to limit litigation costs, they should look at their arbitration agreements closely now to make sure they are enforceable under current standards.  It is important to have separately executed mutual arbitration agreements and not just “arbitration policies” buried in employee handbooks.  Read the current draft of AB 465 here.

Fewer Employees May Be Classified As “Exempt” In The Near Future

Experts are now warning employers to start planning for increase in overtime labor costs.  The Department of Labor is currenly reviewing new regulations, which among other things, will increase the salary threshold of an exempt employee to approximately $970 a week or $50,440 a year.  Following publication in the Federal Register, the proposed regulations will be up for public comment before the DOL issues final regulations.  For more information on these new proposed regulations, the DOL has published a fact sheet.

Employers are required to pay overtime when employees not exempt from the overtime regulations, work more than 8 hours a day or more than 40 hours in a workweek. Overtime pay must be at a rate not less than one and one-half times the worker’s regular rate of pay.

Employers will continue to be able to limit the amount of overtime compensation due such employees so long as employers limit the number of overtime hours the employees work.

SDHR Newsletter – May 2015

Are you ready for the new paid sick leave requirements? Read the latest edition of our human resources newsletter for everything you need to know to get rolling! Also, what you need to know about the new California Family Medical Leave regulations.

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