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External HR Support Briefing: Oct. 25

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Harassment & Discrimination Prevention: Oct. 4 & Dec. 8


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

2. HR Q&A - It's Back to School
      by Tonja Posey, IPMA-SCP, TPO

3. CA WAGE & HOUR QUICK TIP - Rest and Meal Periods in CA
      by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

California and Federal HR Legislation

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

The California Legislature returned from its July recess on August 1 with just one month to pass legislation for 2016. After the Legislature enters its final recess, Governor Brown will then have until September 30, 2016, to sign or veto bills passed by the Legislature.

Following are the major employment-related legislative developments:

SIGNED by the Governor - NEW laws! Effective 1/1/2017 unless otherwise stated

Minimum Wage Increases (AB3) – The Governor signed into law that CA minimum wage will increase from the current $10.00 per hour to ultimately $15.00 per hour on 1/1/2022 through yearly increases. Employers with less than 25 employees have an extra year to comply with the increase.

  • TPO Tip: A complete breakdown of increases by year, including the subsequent increases in the minimum exempt salary threshold was provided in TPO’s prior eNews. Click here to review prior article!

Pay Stubs (AB2535) – A technical clarification made to existing regulations that actual hours worked need not be reported on paystubs for any employee exempt from overtime, whose pay is not determined in any way by hours worked.

Expanded Paid Family Leave (PFL) Insurance (AB908) - The Governor signed into law that CA PFL insurance payments will increase to 60% of wages, capped at $1,100 a week (previously the amount was 55% capped at $1,011 a week). A new provision has been added that will allow for 70% of wages for earning $20,000 or less annually.

  • TPO Tip: PFL is a state-run insurance program. It does not guarantee a leave of absence; rather, it provides supplemental wage replacement where an employer has approved a leave of absence.

Smoking – The Governor signed into law a packaged of bills relating to smoking. In part, the new legislation will:

  • Treat the use of e-cigarettes and vaping devices that contain nicotine as “smoking” – thus extending existing smoking bans to cover such products.
    • TPO Tip: Most handbooks already address “smoking” in the workplace. Employers may want to revise the policy to specifically address e-cigarettes and vaping devices.
  • Expand smoke-free workplace protections by getting rid of most of the existing exemptions that permitted smoking in certain work environments, such as bars, hotel lobbies, warehouse facilities and employer-designated smoking break rooms.
  • Expand the workplace smoking ban to include owner-operated businesses.
  • Raise the minimum smoking age from 18 to 21, except for active military personnel.

In the Legislative Process - Stay tuned!

Equal Pay, Race or Ethnicity (SB1063) – If passed, would expand the state’s equal pay statute, prohibiting discrimination in compensation based on sex, to also prohibit an employer from paying any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work. 

Equal Pay, Salary History (AB1676) – If passed, would prohibit prior salary, by itself, as a justification of any disparity in compensation under the bona fide factor exception to the prohibition on discrimination based on gender. A portion of this bill was “gutted” (removed) which would have prohibited an employer from demanding an applicant’s salary history.

Double Pay on Thanksgiving (AB67) – If passed, would requirealmost all employers to pay double the regular rate of pay on Thanksgiving, designated as a “Family Holiday.”

Agricultural Employers (AB1066)If passed, would remove the existing overtime exemption allowed for agricultural employers. New overtime rules would start in 2019, lowering the current 10-hour-day threshold for overtime by half an hour each year until it reaches the standard eight-hour day by 2022. It also would phase in a 40-hour standard workweek for the first time. The governor would be able to suspend any part of the process for a year depending on economic conditions.

New "Bonding" Leave (SB654)If passed, would require employers with 20 or more employees to provide 6 weeks of protected leave for bonding (maternity or paternity leave).

  •  TPO Tip: Interestingly, this bill was “gutted and amended”, taking language from a previously stalled bill, SB1166, and inserting it into this new vehicle. Before the amendments, SB 654 dealt with the hazardous waste permitting process.

Stalled, or Dead Bills - no further action this Legislative Session!

Arbitration Restrictions (AB 2667, AB 2879 and SB 1241)If passed, would have limited binding arbitration in employment disputes.

  • TPO Tip: Arbitration agreements must be correctly worded in order to ensure their best use. If you have an Arbitration Agreement, make sure it has been recently reviewed by a qualified labor law attorney.

Maternity/Paternity Leave Requirement (SB 1166) – If passed, would have required employers with more than 10 employees and fewer than 50 employees to have provided up to 12 weeks of protected employee leave for maternity or paternity leave.

  • TPO Tip: California already provides 12 weeks of unpaid bonding leave for employers with 50 or more employees, providing the employee has worked for at least a year and has actually worked at least 1250 hours in the past 12 months. Employees can receive partial wage replacement insurance from the state in the form of Paid Family Leave Insurance.

Employer-Paid Three Days of School-related Activities (AB 2405) – If passed, would have given parents up to three employer-paid days each year to enroll their children in school or help with other school-related activities. The bill would have applied to businesses with 25 or more employees.


Flexible Workweek (SB368) – If passed, would have eliminated the rigorous alternative workweek secret ballot election process and allowed the employee the opportunity to request a four, 10-hour day workweek schedule.

Scheduling Requirements (AB878) – If passed, would have required that employers in the retail, grocery, or restaurant workplace, including employers who have hybrid operations that include a retail or restaurant section, to provide a 21-day work schedule and then face penalties and litigation if the employer changes the schedule with less than 7 days’ notice, even when the change is at the request of the employee.

The Department of Labor (DOL) FINALIZED Regulatory Change to Exempt Salary Threshold. The Department of Labor (DOL), announced on 5/18/16 that the federal exempt salary threshold for “white-collar” overtime exemptions (Administrative, Executive and Professional) will more than double from the current federal $455 per week ($23,660 annually) to $913 per week ($47,476 annually) effective 12/1/16. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020. An employee still must meet both the salary threshold and a “duties” test to be exempt from overtime.


More information can be found on the DOL website at

  • TPO Tip: CA’s exempt salary threshold is $800 per week ($41,600 annually) with scheduled increases beginning in 2017.Employers must follow both state and federal laws. A complete breakdown of increases by year, including the subsequent increases in the minimum exempt salary threshold was provided in TPO’s prior eNews. Click here to review prior article.

Interested in reading more about the bills and the process?

Federal legislation:

California legislation:


Federal EEO-1 Report due by September 30th.

All private employers of 100 or more employees (50 or more for Federal Contractors) are required to file an annual compliance survey mandated by federal statute and regulations. The survey requires company employment data to be categorized by race/ethnicity, gender and job category. This is a mandatory survey; it is not optional. For more information or to file electronically click here

CA November Ballot, Recreational Marijuana Use.

On November 8, 2016, California voters will decide whether to approve Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act”, which would legalize recreational marijuana for individuals over the age of 21. Alaska, Colorado, the District of Columbia, Oregon and Washington currently are states with legalized recreational use of marijuana. If CA voters approve the Act, it will not:

OSHA Updates

Beginning August 10, 2016 the Occupational Safety and Health Administration (OSHA) has made new rule updates representing OSHA’s intended enforcement positions:

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...Are You Ready?

by Tonja Posey, IPMA-SCP, TPO



QUESTION:  Are employers required to allow employees time off to attend school functions and events?


ANSWER:  Yes, there are two separate requirements in California. 


1. The School and Child Care Activities Leave requires employers, who have 25 or more employees at the same location, to allow employees time off to attend certain school or child care activities.

In compliance with the law, employers are required to allow employees who are the parent or guardian of a child in kindergarten or grades 1 through 12, or attending a day care facility to take up to 40 hours off per year for the purposes of participating in activities of the school or day care facility.

This time off is generally unpaid and employers may require employees use any accrued vacation/PTO or personal leave for this purpose. Employers may require reasonable notice and documentation may be requested from the school or day care facility by the employer as proof that the employee participated in the activity on a specific date and time. These absences may not be considered an absence for the purpose of absenteeism records or discipline.

Under the School and Child Care Activities Leave “parents” are defined as parents, guardians, grandparents, step parents, foster parents and any person standing in (loco parentis) as parents.

This leave may also be taken for reasons such as enrolling the child in a school or child care facility, school emergency, behavioral or discipline problems, unexpected closure of the school or child care facility and a natural disaster (fire, earthquake or flood).

2. The School Appearance Leave requires all employers, regardless of size, to allow an employee time off in the event the parent was requested by the school to appear in the child’s class in connection with a suspension. Such time off generally is unpaid and the employee must give reasonable notice of the request.

Employers are prohibited from discriminating or retaliating against an employee who takes time off under either of these leaves.

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...a practical overview.

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

Hourly, non-exempt employees must be authorized and permitted to take rest and meal periods.

Rest Period (breaks): One ten-minute rest period during each four-hour period, or major fraction

  • To the extent possible, rest periods are to be taken in the middle of work periods; they are not be combined or added to meal periods. Deviations are allowed only where practical considerations render it infeasible.
  • There is no legal requirement for employees to clock in and out for rest periods, though some employers require employees to do so.
  • Employees working shifts lasting:
- Over 2 hours but under 3.5 hours No rest break time
- 3.5 - 6 hours One ten-minute break
- 6 hours - 10 hours Two ten-minute breaks
- 10 hours - 14 hours Three ten-minute breaks


Meal Periods: One 30 minute unpaid meal period when employees work in excess of five hours.

  • The employee must have the opportunity to be relieved of all active responsibilities and restrictions. An employer need not ensure that the employee does no work; if work does continue, the employer will be liable for straight pay when it “knew or reasonably should have known that the worker was working through the authorized meal period.”
  • Employers must document the duration of meal periods and therefore employees are required to clock in and out for meal periods.
  • Absent a waiver, a first meal period is required no later than the end of an employee’s 5th hour of work (taking it after 5 hours and 1 minute is technically too late), and a second meal period no later than the end of the employee’s 10th hour of work.
  • Employees may voluntarily waive in writing their meal periods only under the following conditions:
  1. If the work shift is completed within six hours, the meal period may be mutually waived. One waiver remains in effect unless revoked.
  2. If work shift is more than 10 hours, one meal period may be mutually waived. One waiver remains in effect unless revoked.
  3. Some employers will allow an employee to request to self-choose to waive the meal period for the employee’s own personal reasons (unrelated to business needs); there is some risk in this option and a signed waiver for each occurrence is recommended.
  4. Some employers can meet an “on-duty” meal if the nature of the work results in an employee not being able to be relieved of duties during a normally scheduled meal period; the "on-duty" meal period will be counted as time worked and therefore paid.  “On-duty” is very narrowly applied. One waiver remains in effect unless revoked.
















Penalty Pay: For each meal or break period an employee is not “authorized and permitted” to take within the above parameters, the employee is owed an extra hour of pay as a penalty. This hour does not count toward the overtime threshold.

This article is brief overview of a very complex matter. Please contact TPO with any questions!


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