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Spanish Language Harassment & Discrimination Prevention: 
October 13

IN THIS ISSUE

1. LEGISLATIVE UPDATE - California & Federal
      by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

2. HR Q&A - HR Rumors: Job Performance Evaluations
      by Kathrine Parsons, SPHR-CA, TPO

3. CA WAGE & HOUR QUICK TIP - Planning a Holiday Week Closure this Year?
      by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

 

Califonia and Federal HR Legislation

by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

With just a few final weeks of this year’s legislative session, following is a recap of the status of employment bills:

Signed into Law:

  • Paid Sick Leave “clean up”- Assembly Bill (AB 304) as signed into law by the Governor clarifies several components of the new law, including:
  1. Not requiring reinstatement of accrued PTO to an employee, rehired within one year of separation from employment, that was paid out at the time of separation.
  1.  Allowing two additional methods of accrual in addition to the current Statutory Method of 1 hour of Paid Sick Leave (PSL) accrued for every 30 hours worked (the accrual can be capped at 48 hours or 6 days):
  • Alternative Method for plans created after 1/1/2015: The accrual is on a regular basis and the employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment. Example: Plans that accrue at least 9 days a year will meet this requirement.
  • Grandfather Method for sick plans in effect prior to 1/1/2015: Provided the sick or paid time off (PTO) policy accrual is on a regular basis so that an employee, including an employee hired into that class after January 1, 2015, has no less than one day or eight hours of accrued sick leave or paid time off within three months of employment of each calendar year, or each 12-month period, and the employee was eligible to earn at least three days or 24 hours of sick leave or paid time off within nine months of employment. Example: Plans that begin accrual upon hire and annual accrue at least 5 days will meet this requirement.
  1. Allowing PSL to be paid using any of the following methods:
  • For hourly, non-exempt positions:
    • The regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek. “Regular rate” includes all hourly earnings, plus commissions, production bonuses, piece work earnings and the value of meals and lodging.
    • Dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment. Like regular rate, total wages includes commission, piecerate, pay differentials, etc.

Reasonable Accommodation Discrimination/Retaliation - Assembly Bill (AB 987) as signed into law by the Governor clarifies that employers may not retaliate or otherwise discriminate against a person for requesting a reasonable accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted. As such, terminating employees for requesting a reasonable accommodation is not an allowable practice.

 

To Governor for His Consideration:

  • Employee Retention (Grocery Establishments) - Assembly Bill (AB 357) if signed by Governor would require a successor grocery employer retain the employees of the former grocery employer for 90 days, potentially under the terms of a collective bargaining agreement to which the successor employer was not a party, and then forces the successor employer to consider offering continued employment to such employees beyond the 90 days unless the employee’s performance was unsatisfactory.  Status: At Governor

Still Moving Forward in the Legislative Process:

  • Minimum Wage - Senate Bill (SB 3) if passed would increase the minimum wage by $3.00 over the next two and a half years and imposes future automatic increases tied to inflation.  Status: In Assembly    
  • CA Family & Medical Leave Act (CFRA) - Senate Bill (SB 406) if passed would modify the current company eligibility requirement from 50 or more employees to 25 or more employees.  Status: In Assembly
  • Arbitration Agreements Assembly Bill (AB 465) if passed would prevent agreements that include any waiver (including arbitration agreements) as a condition of employment of labor protections.  Status: In Senate
  • Applicant Salary HistoryAssembly Bill (AB 1017) if passed would prevent companies from asking an applicant their prior salary and benefit information.  Status: In Senate
  • Applicant Salary HistoryAssembly Bill (AB 970) if passed would allow the CA Labor Commissioner to enforce local (city) minimum wage laws through the citation process.  Status: In Senate
  • Paid Sick Leave to Include In-Home Workers - Assembly Bill (AB 1522) if passed would reverse the exemption of in-home workers from current PSL requirements.  Location: Passed to Senate
  • Expansion to Paid Family Leave Insurance - Assembly Bill (AB 908) if passed would expand from the current 6 weeks, up to 10 weeks of wage replacement benefits.  Location: Passed to Senate

 

The Department of Labor (DOL) PROPOSED Regulatory Change to Exempt Salary Threshold. Proposed changes to the federal “white-collar” overtime exemptions (Administrative, Executive and Professional) would more than double the salary-basis requirement from the current $455 per week ($23,660 annually) to a projected level of $970 per week ($50,440 annually) in 2016.

  • Note: CA’s exempt salary threshold is currently $720 per week ($37,440 annually) and on 1/1/16 will increase to $812 per week ($42,224 annually).

Healthy Families Act (H.R. 932 and S. 497) If passed, would allow most private-sector employees to earn up to seven days of paid sick leave per year. The law would apply to employers with 15 or more employees, and permit workers to accrue an hour of paid leave for every 30 hours worked, up to a maximum of 56 hours per year. Smaller employers would be required to provide unpaid leave.  Location: Congressional Committee

Employment Non-Discrimination Act (S. 815) If passed, would prohibit employment discrimination on the basis of sexual orientation or gender identity.  Location: Congressional Committee

Paycheck Fairness Act (S. 862) If passed, would amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes. Location: Congressional Committee

Interested in reading more about the bills and process?

Federal legislation: http://www.govtrack.us/congress/legislation.xpd

California legislation: http://www.leginfo.ca.gov/bilinfo.html

 

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Job Performance Evaluations

by Kathrine Parsons, SPHR-CA, TPO

 

“I heard that an employer really doesn’t need to do job performance evaluations because there’s no law that says we have to do them.” 

 

There’s no law that says an employer must conduct performance evaluations, but it is a best practice.  Frankly, it’s part of a good, strong affirmative defense if they are conducted correctly.

There are many reasons employers choose not to conduct job performance appraisals: they don’t have the time, managers and supervisors don’t like to do them, they always get everyone upset, or perhaps they don’t have enough money for raises so they don’t do the evaluations.  And there’s many more.  Then when an employer wants to terminate the employment of a problem employee RIGHT NOW because they’ve finally had enough, that important piece of documentation is non-existent – and that means the termination may come as a surprise to the employee.  And we all know a surprised employee is often times a disgruntled former employee who decides they were treated unfairly and wants to get even.  Enter the Labor Commissioner, the DFEH and EEOC, or the former employee’s attorney.  Perhaps there’s even a workers’ compensation claim thrown into the mix.  With 20/20 hindsight, how nice it would be if there was documentation of poor job performance (or unacceptable behavior), occasions when the problems were discussed, and the employer’s attempts to assist the employee solve the problem (e.g. extra training).   There’s a good chance it could have all been avoided if problems were identified and addressed through the job performance appraisal process.

So the rumor is correct.  There is no law that requires an employer to conduct job performance evaluations, but they are a best practice and very highly recommended by TPO.  If you’d like assistance with starting or updating your job performance evaluation process, call your TPO consultant.  We can provide the customized tools and training to make it a smooth and stress-free process at your organization.

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...make decisions now for-a smooth closure!

by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

 

We know the warm sun is shining bright; however, the holidays are just over 3 months away and if your organization is deciding (or has decided) to close during the holidays; make sure you are in compliance with CA wage and hour requirements that may require 90 days’ notice! This year Christmas and New Year’s fall on Fridays.

Take a look at the calendar and make some decisions, which might include:

  1. closing on your designated holidays,
  2. closing between Christmas and New Year’s, and/or
  3. changing your usual holidays to accommodate business, customer and/or employee preferences.

 

As you decide, keep in mind:

    • Employees in Non-Exempt Positions: Need only be paid for actual hours worked. If the organization chooses to close for days/weeks, the employee can be required to use accrued but unused vacation/PTO; similarly, an employer can deny an employee’s request to use accrued but unused vacation/PTO during the holiday closure (an approach those who are in a cash-flow crunch might choose), however, carefully consider the employee-relations impact of such actions especially during the holiday season when money may be tight for your employees.
    • Employees in Salaried, Exempt Positions: Remember, employees in such positions are paid for any workweek in which they perform any work, subject to full or partial day deductions from vacation/PTO for their own personal reasons, in accordance with company policy. Therefore, if the organization is closing for 3 days of the workweek and the employee worked 2 days in the workweek, s/he must be paid for the full week.
    • A workweek is determined by the employer and is a recurring 7-day period. For many employers this is Monday at midnight (12am) to Monday at midnight (12am), though any 7-day period is possible, such as Friday at noon (12pm) to Friday at noon (12pm).
    • Salaried, exempt employees who do not work any of the workweek do not need to be paid for that workweek; which might apply this calendar year if you close the week of New Year’s. In order to require a salaried, exempt employee to use vacation/PTO during a full-workweek closure; such requirement must be communicated in writing at least 90 days in advance.

General to Both: Remember that an employee who answers work-related phone or logs into the company email system for messages, etc. is doing work for the company’s benefit and has technically worked. You may want to make certain employees understand they are not to work (even remotely) during the week if you do not want to end up paying them for time worked.

 

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