CA EMPLOYMENT ESSENTIALS (CEE) is a 6 module training series of employment essentials focusing on regulatory compliance and HR best practices. Hiring to Separation: What Management and HR MUST KNOW!

LEADERSHIP EXCELLENCE SERIES (LES) is an 8 module training series focusing on practical leadership and communication skills to help managers DEVELOP OR REFINE THEIR EFFECTIVENESS AS LEADERS!

Dates of Upcoming Series:

CEE Begins: Oct. 11

LES Begins: Sept. 13

TPO's popular prescheduled workshops are presented on a wide range of important regulatory and leadership topics. Many are available to attend via webinar.

Dates of Upcoming 3-hour Workshops (9:00am - Noon):

Excelling as a Manager/Supervisor: Sept. 12

Wage & Hour: Sept. 18

FMLA/CFRA/PDL: Sept. 26

Dealing with Difficult People: Oct. 10

TPO brings you periodic briefings presented by knowledgeable subject matter experts on a variety of timely employment topics.

Dates of Upcoming Briefings:

External HR Support Briefing: Oct. 23 & Dec. 4

TPO's H&D prevention training goes above and beyond to address all forms of harassment and discrimination (age, race, religion, disability, etc.) that today's managers must be prepared to prevent and address.

Dates of Upcoming H & D:

Harassment & Discrimination Prevention ENGLISH: Oct. 2 & Dec. 6

IN THIS ISSUE

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

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

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

HR Legislation

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

Following are the major California and Federal employment-related legislative developments:

Signed into Law by California’s Governor:

New Law - Harassment and Reference Checks (AB 2770) – As signed into law, protects an employer’s ability to warn potential employers during the reference check process about an individual’s harassing conduct that was investigated, without the threat of a defamation lawsuit by the alleged harasser. AB 2770 passed the Legislature with unanimous bipartisan support.

New Law - Paid Family Leave Insurance Technical Update (AB 2587) –  As signed into law, provides a technical modification to some EDD documents eliminating the seven-day waiting period for Paid Family Leave (PFL) insurance benefits.

New Law - Salary History Ban Clarifications (AB 2282) – As signed into law, provides clarification to the 1/1/2018 law that prohibited employers from “seek[ing] salary history information” from an applicant and required employers must, upon “reasonable request,” provide an “applicant” with “the pay scale” that corresponds to the position sought. AB 2282 provides these clarifying definitions:

    1. “Applicant” is “an individual who is seeking employment with the employer and
    2. is not currently employed with that employer in any capacity or position.”
    3. “Reasonable request” is a “request made after an applicant has completed an initial interview with the employer.”
    4. “Pay scale” is a “salary or hourly wage range.”

Sent to Governor (with a 9/30/2018 deadline to become a new law or to be vetoed):

Settlement and Arbitration Agreements (AB 3080) – If passed, would ban settlement agreements for labor and employment claims as well as arbitration agreements made as a condition of employment.

Still in Progress for this California Legislative Session:

Release of Claims (SB 1300) – If passed, would limit the use of nondisparagement agreements and general releases in employer/employee contract as well as lower the sever or pervasive standard. On the Assembly Floor.

Sexual Harassment (AB 3081) – If passed, would provide for many modifications pertaining to sexual harassment that are currently protected under the Fair Employment and Housing Act (FEHA) to also be included in the Labor Code. This bill would require leaves of absence protections for employees and their family members. Additionally, this bill would expand labor contractor joint liability for sexual harassment. On the Senate Floor.

Labor Code Penalties (AB 2732) – If passed, would require employers to provide a worker bill of rights document to all employees, have them sign it, give them a copy of the signed document, and keep the original for three years. On the Senate Floor.

Failed Deadline for this California Legislative Session:

Medical Marijuana in Employment (AB 2069) – If passed, would have required employers to provide a reasonable accommodation to employees who use marijuana for a disability or medical purposes.

Disclosure of Company Pay Data (SB1284) – If passed, would have required California employers to submit pay data to the Department of Industrial Relations.

Sexual Harassment Complaint Documentation and Retention (AB 2732) – If passed, would haverequired employers with 50 or more employees to maintain internal complaint records of employee complaints alleging sexual harassment for a minimum of five years after the last day of employment of the complainant or any alleged harasser named in the complaint, whichever is later. 

Extension of Statute of Limitations (AB 1870) – If passed, would have extended the statute of limitations from one year to three years for all discrimination, harassment and retaliation claims filed with the Department of Fair Employment and Housing.

Ending the Monopoly of Power Over Workplace Harassment Through Education and Reporting (EMPOWER) Act (H.R. 6406, S. 2994) – If passed, would, among other obligations, ban nondisclosure and non-disparagement agreements related to harassment as a condition of employment or receipt of employment-related benefits, and would require certain public disclosures.

Tax Deductions for Sexual Harassment Settlements – Congress passed legislation that in part addresses that no deduction is allowed for any settlement or payment related to sexual harassment or sexual abuse if the settlement or payment is subject to a nondisclosure agreement. Additionally, no deduction is permissible for attorneys’ fees related to a confidential sexual harassment settlement or payment. These payments remain tax-deductible, however, if they are not subject to a nondisclosure agreement.

Interested in reading more about the bills and the process?

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

For CA legislation: http://leginfo.legislature.ca.gov/

 

Small Amounts of Routine “Off the Clock Work” – The California Supreme Court held that employers can’t allow employees to routinely work for minutes off the clock without being paid. For example, tasks required before clocking in or after clocking out.

New Intern Test – The federal DOL has a new seven-factor “primary beneficiary” test for the intern/employer relationship strengthening that many interns are considered employees, and employers will need to compensatethem accordingly.

National Origin Discrimination – The California Department of Fair Employment and Housing (DFEH) provided clarifications that protect both applicants and employees, including those who are undocumented. These protections apply to employees based on perceived national origin, as well as the national origin of theemployee’s spouse or those with whom the employee/applicant is associated with.

Updated CA Employment Development Department (EDD) Poster and Pamphlet –

    1. Workplace Poster — EDD Notice to Employees (DE 1857A). The revised notice is dated May 2018, published in July 2018 and must be posted by 1/1/2019. Click here to download.
    2. Separation of Employment PamphletEDD For Your Benefit: California’s Program for the Unemployed, (DE 2320) required to be provided when a California employee is terminated, laid off or takes a leave of absence. Employers may use the prior version until 1/1/2019. Click here to download.

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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?

AnswerYes, 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 absences 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.

 

 

 

 

 

 

 

 

 

 

 

 

 

Have questions? Give TPO a call today!

 

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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 winter 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 Day and New Year’s Day fall on Tuesdays.

 

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

  • closing on your designated holidays,
  • closing between Christmas Day and New Year’s Day, and/or
  • 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 to  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 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 4 days of the workweek and the employee worked 1 day in the workweek, the employee must be paid for the full week. Some organizations might want to allow exempt employees to work remotely during closures and provide the opportunity for them to take vacation/PTO if they choose.
  • 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).
  • Exempt employees who do not work any of the workweek do not need to be paid for that workweek.
  • In order to require an 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 calls or logs into the company email system for messages, emails, etc. is doing work for the company’s benefit and has technically worked. You may want to make certain employees understand if they are not to perform any work (even remotely) during the business closure.

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