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!

2016 Dates of Upcoming Series:

CEE Begins: March 10, May 12

LES Begins: April 7, September 8

TPO's popular prescheduled three-hour (9am - noon) workshops are presented on a wide range of important regulatory and leadership topics. Many are available to attend via webinar.

Dates of Upcoming Workshops:

FMLA/CFRA/PDL Compliance: February 11

Driving Difficult Conversations: April 27

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

Dates of Upcoming Briefings:

Pay Equity Briefing: February 17, June 15

Paid Sick Leave (PSL) Briefing: March 16

External HR Support Briefing: February 24

Auditing Your HR Function Briefing: April 13

Applies to ALL CA Employers, regardless of size. This law has lots of complicated angles, up to and including employee relations!

Dates of Upcoming Webinars:

Pay Equity: February 25

Paid Sick Leave (PSL): March 23

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: March 30

IN THIS ISSUE

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

2. HR Q&A - Were Changes Made to CFRA in 2015?
      by Kathrine Parsons, SPHR-CA, TPO

3. CA WAGE & HOUR QUICK TIP - Paid Sick Leave (PSL)
      by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

 

Califonia and Federal HR Legislation

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

The dust has settled and the new laws signed in 2015 are being reviewed by employers for policy changes necessary to be in compliance. For a full recap of new laws and cases impacting employment, attend TPO’s Annual Employment Law and Leadership Conference on 1/21/16.  Following is a recap of the most impactful employment laws:

SIGNED into Law in 2015 (effective 1/1/2016 unless otherwise noted):

NEW Law – Equal Pay Protection – SB358 enacts the strongest equal-pay protection in the nation by letting female employees challenge pay discrimination based on the wages a company pays to other employees who do “substantially similar” work. Also prohibits retaliation for discussing or asking the compensation of male colleagues.

NEW Law –Paid Sick Leave “clean-up”-  AB 304 clarifies several components of the new law, including clarifying PTO payouts, two additional accrual methods, unlimited sick time, and how to pay exempt and non-exempt employees. To request TPO’s recap of PSL, please click here.     Effective 7/13/2015 as emergency legislation

NEW LawReasonable Accommodation Discrimination/Retaliation - AB 987 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.

NEW LawPiece Rate Workers – AB 1513 requires: 1) paying for rest and recovery periods and other non-productive time at specified minimum hourly rates, 2) total hours of rest and recovery periods must be on pay stub, and 3) a “safe harbor” provision for employers who had not paid piece-rate properly in the past if met by 12/15/16.

NEW Law School Activities Leave – SB 579 expands existing law by allowing use for an employee to find a school or a licensed child care provider and to enroll or re-enroll a child, and time off to address child care provider or school emergencies. Applies to employers with 25 or more employees.

NEW Law Kin Care – SB 579 makes a technical correction requiring that up to half of sick/PTO (in no event less than that required by Paid Sick Leave) be used for “family member” which is now defined the same as that under PSL.

NEW Law National Guard Leave and Protections – AB 583 expands CA military leave protections to employees in the National Guard. 

NEW Law Whistleblower and Anti-Retaliation – AB 1509 prohibits employers from retaliating against an employee when his/her family member engages in whistleblowing.

NEW Law Itemized Wage Statements –AB 1506 limits technical violations on an itemized wage statement that does not create any injury to an employee, by allowing the employer a limited time period (33 days) to fix the violation before civil litigation.  Effective 10/2/2015 as emergency legislation

NEW Law Employee Retention (Grocery Establishments) - AB 359 requires 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. 

NEW Law Cheerleaders – AB 202 requires CA-based professional sports team classify cheerleaders as employees, to independent contractors. Not relevant to many employers, but just seeing if you are paying attention! First client to e-mail me gets a prize!           

 

IMPORTANT CA Monetary Changes for 2016!

  • Administrative, Executive and Professional: The minimum salary exemption increased to at least $800.00 weekly, $3,466.66 monthly, or $41,600 annually.
  • Computer Software Exemption: The minimum rate of pay exemption increased to $41.85 hourly, $7,265.43 monthly, or $87,185.14 annually.
  • Licensed Physician or Surgeon Exemption: The minimum hourly pay increased to $76.24.

 

 

 

 

 

 

  • Berkeley - October 2016, $12.53
  • Mountain View - January 2016, $11.00
  • Oakland - January 2016, $12.55
  • Richmond - January 2016, $11.52
  • San Francisco - July 2016, $13.00

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 $800 per week ($41,600 annually).

 

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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"Were Changes Made to CFRA in 2015?"

by Kathrine Parsons, SPHR-CA, TPO

 

Yes, the CFRA (California Family Rights Act) regulations were amended effective July 1, 2015.  In general the changes are said to have been made to better align CFRA with the federal FMLA (Family and Medical Leave Act), thereby reducing confusion in some areas.  The following summarizes the most prominent changes.

Joint Employment Test – There have long been questions about who to count as employees to determine if you have 50 or more employees, specifically when it comes to temporary employees (e.g., from a temp agency).  There is now a specific test, the “economic realities test”, that determines if a joint employer situation exists where bot employers would need to count an employee.  If an employee works for two or more employers, or works for two or more employers at different times during the workweek, and if the employee does work that “simultaneously benefits two or more employers”, then a joint employment will be considered to exist and both employers should count the employee. 

Employees on Leave – Employers must count any employees on leave when determining if they meet the 50 employee threshold.  This includes employees who are on either a paid or unpaid leave of absence, and includes those employees who may be on suspension, etc.,

“Worksite” if Employed by Joint Employers – When an employee is jointly employed by two or more employers (see above), the employee’s worksite is the primary employer’s office from which the employee is assigned or reports – unless the employee has physically worked for at least one year at a facility of a secondary employer.  In that case the employee’s worksite is that of the secondary employer.  The employee should be counted by the secondary employer to determine CFRA eligibility for the secondary employer’s employees.

“Worksite” Defined – The 75-mile criteria means at least 50 employees within 75-miles, measured in surface miles, of the worksite where the employee requesting the leave is employed.  A worksite can refer to either a single location or a group of contiguous locations.  For employees who do not have a clearly defined “worksite” such as employees who work in the field, on the road, or at home (telecommuters), the “worksite” may be the employee’s “home base” such as a regional office.  The example mentioned in the regs is a salesperson who works from home in California, and who reports to and receives instructions from headquarters in New York.  In this case the New York office, not the employee’s home, is the site where there must be 50 employees within a 75-mile radius in order for the employee to be eligible for CFRA. 

Becoming Eligible for CFRA When On Leave – If an employee is not eligible for CFRA leave at the start of a leave because the employee has not met the 12-month length of service requirement, the employee may nonetheless meet this requirement while on leave, because the leave to which he/she is otherwise entitled counts toward length of service (although not for the 1250 hour requirement).  The employer should designate the portion of the leave in which the employee has met the 12-month requirement as CFRA leave. For example, if an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits, etc.), the week counts as a week of employment.

If an employee has met the 1250-hour requirement, but not the 12-month requirement, the time that the employee is on a (non-CFRA) leave now counts toward the 12-month threshold.  For example, if an employee who has worked at least1250 hours, but only 11 months, and the employee is approved to take time off for 2 months, the employee will meet the 12-month requirement in the middle of the leave.  Therefore, beginning the second month of the leave, the employee becomes eligible for CFRA.

Serious Health Condition/Inpatient Care – The definition of a serious health condition has been changed to include, but not limited to, on the job injuries, impairment, or physical condition of the employee or a child, parent, or spouse that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse.

Additionally, the definition of inpatient care used to require an overnight stay.  The definition has been amended to mean a stay in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with such inpatient care, or any period of incapacity.  A person is considered to be an “inpatient” when a health care facility formally admits his/her with the expectation that he/she will remain at least overnight, even if it later develops that the person can be discharged or transferred to another facility and does not actually remain overnight.

Spouse –“Spouse” means a partner in marriage or a registered domestic partner, and includes same-sex partners in marriage.

Guarantee of Reinstatement (to Job) – An employee is entitled to reinstatement even if the employee has been replaced or his/her position has been restructured to accommodate the employee’s absence.  If an employee is not longer qualified for the position because of the employee’s inability to attend necessary courses, renew a license, etc. as the result of the leave, the employee shall be given a reasonable opportunity to fulfill those obligations.

Return to Work: Release/Yes, Fitness for Duty Exam/No – An employer may not require an employee to undergo a fitness-for-duty exam as a condition of an employee’s return.  After an employee returns from CFRA leave, any fitness-for-duty exam must be job-related and consistent with business necessity.

Medical Certifications – The employer may NOT contact a health care provider for any reason other than to authenticate a medical certification.

Source: http://www.dfeh.ca.gov/res/docs/FEHC/FinalCFRAText.pdf

 

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...Accrual Does NOT Stop At 3 Days!

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

Paid Sick Leave (PSL) continues to cause some confusion for California business owners. Many employers and employees still believe that the law requires that employees automatically receive 3 days* per year regardless of the hours actually worked. This situation is only true when the company has chosen to provide PSL through the “Up-front Method.” This is not true where the employer choose the “Accrual Method.”

  • Before continuing, please note that “3 days” is equivalent to 24 hours, except where the employee’s regular schedule is more than 8 hours a day. For example, an employee on an Alternative Workweek of 10 hour days, 3 days will equal 30 hours. Conversely, if the employee works less than 8 hours a day, it may not be prorated to less than 24 hours.

Under the Accrual Method, employees earn one hour of PSL for every 30 hours worked, and employers may cap the accrual at 6 days if it is written in their policy.

In recent reviews of current accrual method implementations, (via an HRIS system, a payroll program, an Excel spreadsheet, or an array of Post-It Notes), it is apparent that employers are capping their accrual at 3 days which is not compliant with the law. Employers can set 6 days as the cap under the Accrual Method, provided that the cap is detailed in a written policy.

As a reminder, while the accrual can cap at 6 days, employers can limit actual use to 3 days per year. That can be a very confusing concept for many to wrap their heads around. Employees may not understand the distinction and may feel that they are being cheated. However, the law clearly differentiates between accrual and usage in the state’s answer to question 12 on their FAQ page at this URL: http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm (Amber, link please).

Employers who are using the Accrual Method should check accrual calculations as follows:
  • If the written policy requires a cap, make sure that the accrual is set to cap at no fewer than 6 days.
  • Check the settings under use per year and, if you would like to implement the maximum use, set the usage to not exceed 3 days annually.

 

 

  • A “year” can be defined as 7/1-7/1 or to an anniversary or calendar, as listed in your policy.

 

  • Make sure the pay stub lists the amount "available" which is the accrual minus use, which can also be set to not exceed 3 days.

 

 

 

We look forward to the opportunity to provide you with unlimited phone/email access, reduced consulting and training rates, eCompliance notices, attendance to our Annual Employment Law & Leadership Conference at no additional cost, and priority status when you require TPO support from any of our highly qualified team of nationally certified HR experts!
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