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: March 7, May 9

LES Begins: April 4, Sept. 12

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):

2019 Coming Soon

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: 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:

2018 Harassment & Discrimination Prevention ENGLISH: Dec. 6

2019 Supervisor Harassment & Discrimination Prevention ENGLISH: March 27, June 13, Aug. 20, Oct. 1 & Dec. 5

2019 Employee Harassment & Discrimination Prevention ENGLISH: March 27, June 13, Aug. 20, Oct. 1 & Dec. 5

IN THIS ISSUE

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

2. HR Q&A - Meal Waivers
       by Tonja Posey, IPMA-SCP,TPO

3. CA WAGE & HOUR QUICK TIP - Auditing Payroll
      by Melissa Irwin, SPHR, PHRca, SHRM-SCP, TPO

4. Reminder - Off the Clock Work
      by Caron Pearce,TPO

5. TPO News - Senior Consultant

6. Member Spotlight - Corral de Tierra Country Club

7. Conference Co-Sponsor Spotlight - National Compliance Systems, LLC

8. Welcome New Members

HR Legislation

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

New CA Laws and Regulations (effective 1/1/2019 unless notes)

New Law - Harassment Training (SB 1343)Modifies the current law (requires employers with 50+ employees to provide supervisors/managers two hours of sexual harassment training within six months of hire/promotion and every two years thereafter) to by January 1, 2020, all employers with five or more employees are required to

  1. provide two hours of sexual harassment training to supervisors/manager, AND
  2. provide one hour to non-supervisorial employees.

Both the supervisor/manager and employee training are required within six months of hire/promotion and every two years thereafter.

New Law - Harassment and Reference Checks (AB 2770)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. When contacted for a job reference about a current or former employee, an employer will now be permitted to reveal when the individual is not eligible for rehire based on the employer’s determination the former employee engaged in sexual harassment.

New Laws – Harassment Settlement Agreements, Nondisparagement Agreements, and General Releases (SB 820, SB 1300 and AB 3109)These bills provide for various new specific requirements for legal releases related to sexual harassment, assault and discrimination.

New Law - Paid Family Leave Insurance Update (SB 1123)PFL insurance will be expanded beginning January 1, 2021, to any employee who takes time off to attend to “qualifying exigencies” related to the covered active duty status of the employee’s spouse, registered domestic partner, child or parent who is a member of the US Armed Forces.

New Law - Salary History Ban Clarifications (AB 2282)Provides clarifying definitions to existing law that prohibits seeking 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.

New Law – Lactation Accommodation (AB 1976)Changes the current law that an employer must provide a location other than a “toilet stall” for an employee to express breast milk, to “bathroom.”

New Law – Human Trafficking

Independent Contractors. The CA Supreme Court in 2018 announced a significant change by adopting a modified “ABC” test for determining whether an individual is an employee in CA for Labor Commissioner issues. An individual is presumed to be an employee unless the company can prove all three of the following:

    1. That the worker is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
    2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
    3. That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.

Small Amounts of Routine “Off the Clock Work” – The CA Supreme Court in 2018 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. See next TPO article for more complete information!

Flat Sum Bonuses. The CA Supreme Court upheld the DLSE’s method of determining Flat Sum Bonuses (in this case a weekend attendance perk). The correct method is factored into an employee’s “regular rate” of pay by dividing the amount of the bonus by the total number of non-overtime hours actually worked during the relevant pay period and using 1.5, not 0.5, as the multiplier for determining the employee’s overtime pay rate.

Reminder CA Minimum Wage Increases CA minimum wage increases to ultimately $15.00 per hour on 1/1/2022 through yearly increases. Employers with 25 or fewer employees have an extra year to comply.

$11.00  1/1/2018 $   880.00 weekly, $3,813.33 monthly, $45,760 annually
$12.00  1/1/2019 $   960.00 weekly, $4,160.00 monthly, $49,920 annually
$13.00  1/1/2020 $1,040.00 weekly, $4,506.66 monthly, $54,080 annually
$14.00  1/1/2021 $1,120.00 weekly, $4,853.33 monthly, $58,240 annually
$15.00  1/1/2022 $1,200.00 weekly, $5,200 monthly, $62,400 annually
And then annual increases based on the CAConsumer Price Index (CCPI).

 

Updated! 2019 Annual Exemption Compensation Increases. While most exemptions require a salary to be paid, the following are exemptions for employees paid hourly providing the duties requirements are met.

Reminder! CA Agriculture Overtime Phase-In. As passed in 2017, starting 1/1/2019, the current 10-hour day threshold for overtime is lowered by half an hour each year until it reaches the standard 8-hour day by 2022. Employers with 25 or fewer employees have an additional 3 years to comply.

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...Please explain

by Tonja Posey, IPMA-SCP, TPO

Question: Could you please explain Meal Waivers to me again?

AnswerMeal periods can be complicated and are only applicable to hourly, non-exempt employees. Hourly non-exempt employees are required to be provided a meal period when they are scheduled to work more than 5 hours and that meal period must be taken before the end of the 5th hour of work (so a meal period after 5 hours and 1 minute, is technically too late).

 

 

There are four different types of waivers:

If the work shift is completed within six hours, the employee may waive the meal period. This waiver is specifically allowed per the Wage Order. This form is in the Upon Hire tab of your TPO HR Administration Kit. One time signed is in effect unless revoked, though a more risk-adverse position would be a signature each time.

If the employee works a long shift of more than 10 hours, the employee may waive one meal period. This waiver is specifically allowed per the Wage Order. This form is in the Upon Hire tab of your TPO HR Administration Kit. One time signed is in effect unless revoked, though a more risk-adverse position would be a signature each time.

If the employee is in a position where the company will consider the employee’s request to self-choose to waive the meal period (and will approve or not approve the request). This type of waiver comes from the Brinker Case which clarified that employer need only “provide” the opportunity for a meal period, not to “ensure” that the meal period was taken. This form is in the General tab of your HR Administration Kit. It must be signed for EACH occasion that an employee is approved to waive their "provided" meal period and that they want to miss for their own personal reasons (not because the employer is in any way making them waive it).

Please understand that this option does have some risk around it; essentially, if a claim were made, can the employer clearly show that the meals were waived due to the employee’s reason (so the employee could go early to a personal event, etc.) and not the employer’s reason (so that clients are best served, or other business requirement). There is less risk if the employee asks for this option intermittently, rather than the employee asking for a blanket request in effect for all of employment. Many employers will not allow employees to request this type of waiver for three main reasons: 1) they are not willing to accept the risk of future claims, 2) they don’t want to deal with the scheduling changes, and/or 3) they don’t want to have to deny requests. Please talk with your TPO Consultant about the risk/rewards of this option for your organization.

If the nature of the employee's work results in the 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. While this is allowed in the Wage Order, in practice, this option is so narrowly allowed by the Labor Commissioner that employers are cautioned before adopting it. The employer would have to prove that an employee cannot be breaked-out (someone else to relieve the employee) or the office could not be shut down ("back in 30 minutes" sign).  The Labor Commissioner expects that hourly, non-exempt employees will be provided a way to take meals and breaks...or else pay the penalty hour for not providing the opportunity. While it is not wrong to have it completed, you need to know that it is also not a guarantee; employers are advised to make sure hourly, non-exempt employees are provided opportunities to take meals and breaks. This waiver is so narrowly applicable that it is not part of the HR Administration Kit.

Why this topic is so important: Penalty Pay! Remember, for each meal 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 (up to one hour a day for multiple missed 10-minute breaks). This hour does not count toward the overtime threshold. And remember, CA claims can go back four years!

Note:  January 1, 2019, AB 2610 does insert a Commercial Driver exception to the Meal Period Laws; for certain commercial drivers, a meal period is required after six (6) hours, instead of five (5), if the driver is paid at 1.5 times the minimum wage and receives overtime compensation.

Have questions? Contact TPO today!

 

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...Got a Minute?

by Caron Pearce, TPO

The July 2018 California Supreme Court Ruling in Troester V. Starbucks Corp. made it very clear that employees should be compensated for every minute of regularly occurring work time, regardless if that time is actually “on the clock.”

The federal de minimis doctrine allows employers to disregard uncertain and insubstantial amounts time of a few seconds, or minutes of work time as compensable. But California wage and hour statutes and regulations have not incorporated the de minimis doctrine in this notable wage and hour case.

 

Troester, the plaintiff in this case, was a supervisor at Starbucks Corp. and submitted evidence that he was required to clock out at the end of every shift and then perform additional work tasks to include:

  • Transmit data to Starbucks’s corporate headquarters
  • Activate the alarm
  • Exiting the store
  • Locking the front door
  • Reopening the store so employees could retrieve items they had left behind
  • Bringing in store patio furniture mistakenly left outside
  • Walking coworkers to their cars

 

 

 

 

These tasks took between four to ten minutes each day. Over the 17-month period of his employment, they totaled almost 13 hours, or about $102 at the then-applicable minimum wage of $8.00 per hour.

The court stated, “That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares.” “What Starbucks calls ‘de minimis’ is not de minimis at all, to many ordinary people who work for hourly wage.”

It remains to be seen whether this case leaves the door open for a de minimis defense in a case with different circumstances. There may be circumstances in which compensable time is so small, and/or so irregular that it may seem unreasonable to expect the time to be recorded.

According to the Court, options for employers include:

  • Restructuring work so that employees do not have to work before or after clocking out;
  • Customizing and adapting available time-tracking tools, or developing new ones when no off-the-shelf product meets their needs; or
  • Reasonably estimating work time through, for example; surveys, time studies or a fair rounding policy, and then compensating employees for that time.

 

 

 

 

 

TPO recommends that you have an open/interactive discussion with your non-exempt employees to understand what they are doing before the start of every shift, (before clocking-in), or at the end of every shift (after clocking-out). If your employees are performing tasks that might be construed as work-related, and it is an expectation by you as the employer, make sure you are compensating them. Work side-by-side with employees if necessary, to determine how much additional time you should be compensating them for. You might even want to produce a simple short-form agreement for them explaining how many minutes of additional paid off-the-clock time per shift will be and include a list of tasks, with directions on who they should report any time that goes beyond the expectation.

Example:

If there are work related tasks that are being performed off-the-clock by your employees, but it is not your expectation that the work is performed, you should direct them to only perform those tasks during their regular work shift.

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...Confirm Alignment with HR Policies!

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

Clients spend a lot of time deciding on what policies to adopt and create/revise Employee Handbook policies accordingly. Knowing that over time these policies revise, it is recommended to continually audit payroll practices to make sure they are aligned with current HR practices.

 

Areas of payroll practices to review include:

Overtime – 1) Ensure the workweek (seven recurring consecutive days) matches the handbook policy. 2) Meet both CA and federal overtime requirement. 3) Confirm overtime is paid at the “regular rate” which is more than the base hourly rate if the employee is paid such as commissions, non-discretionary bonuses, piece-rate, value of meals/lodging, and multiple rates of pay (ensuring correct coding for inclusion in the regular rate). 4) For Agriculture clients, adjust overtime for 2019 and subsequent step-downs.
Vacation/PTO accrual – Confirm accurate accrual, carryover/cap, use, and rate paid out. In CA the cap must be a “reasonable amount” which is usually 1.5 or 2.0 the current accrual rate. Available vacation/PTO is recommended to be listed on the paystub, and if PTO is used to satisfy PSL (next item) the “available” PTO must be listed on the paystub.
CA Paid Sick Leave (PSL) – 1) Confirm accurate accrual, carryover/cap, use, and rate paid out. 2) “Available” PSL must be listed on the paystub. 3) PSL must paid at the “regular rate” which is more than the base hourly rate if the employee is paid such as commissions, non-discretionary bonuses, piece-rate, value of meals/lodging, and multiple rates of pay (ensuring correct coding for inclusion in the regular rate); it can either be paid based on the workweek in which the PSL was taken, or a 90 day look-back period.
Meal/Break Penalty Hour of Pay – Where employees are not provided meals/breaks, ensure that the hour of penalty pay is not being counted as time worked.

 

As you audit your payroll practices to ensure it is in alignment with your HR policies, if you have any questions, please contact a TPO Consultant for assistance.

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...Congratulations Tonja

 

We are pleased to announce that Tonja Posey, IPMA-SCP has been promoted to SENIOR-level Consultant with TPO. An accomplished Human Resources (HR) Professional with a career encompassing over 20 years in HR management, support and operational improvements, Tonja has extensive private and public sector experience in both small and large employer operations. Her history with TPO dates back to the mid-90's when she was the HR Manager for a TPO member client. She joined TPO as a consultant in March of 2016 and has continued to excel. Thank you for your countless contributions to TPO, our members and staff!

 

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Michael J. Oprish, General Manager/COO

"TPO has provided Corral de Tierra Country Club with Human Resource services for over 20 years. The experience and professionalism we receive from TPO is second to none! Their wide range of services provides our Club with all the support we need to stay current with employment law, wage and hour, harassment training, management recruiting, employee handbook revisions, and many more services."

"One of the most important issues for me is the ability to consult with the same familiar personnel. Jill and Robert have done an excellent job retaining key personnel. I also appreciate their knowledge of the top local industries and the challenging labor market we have here in Monterey County."

"TPO Provides excellent service at a reasonable cost. Thank you, TPO!"

Our Story

In an area of the country known for its magnificent golf venues, Corral de Tierra Country Club stands out on that extensive list of prestigious Clubs. It is considered the refuge for the greater Monterey Peninsula and Salinas Valley residents to enjoy the privileges of a private, Member-Owned Country Club. For nearly 60 years, the tradition of quality golf, dining, tennis, swimming, fitness and social activities have been enjoyed by the Club’s greatest asset, our Members, who enjoy the family-friendly and relaxed atmosphere of our casual ambiance that is Corral de Tierra.

For more information Click Here

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...Occupational Health & Safety in California, an Employers' Responsibility

 

 

Bill Tidwell, President/CEO

Compliance with Regulations
About the California Division of Occupational Safety and Health Agency (OSHA) - The Division of Occupational Safety and Health of California is an agency of the Government of California established by the California Occupational Safety & Health Act of 1973. Administered by the California Department of Industrial Relations, Cal/OSHA's mission is to protect public health and safety through research and regulation related to hazards on the job in California workplaces. Cal/OSHA requires that qualifying organizations create illness and injury prevention programs meant to help identify and eliminate dangers before accidents and illnesses occur.

California employers have many different responsibilities under the California Occupational Safety and Health Act of 1973 and Title 8 of the California Code of Regulations. The following represents a partial list of the most important ones:

 

 

 

 

 

 

 

Solutions
About Our Company, National Compliance Systems, LLC (NCS) - Our Mission & Vision is to provide Businesses with Affordable Solutions to Effective Loss Control and Risk Reduction by Reducing or Eliminating Workers' Compensation and Professional Liability Exposure to enhance your Bottom Line. National Compliance Systems (NCS) has specialized in providing Loss Control Management Services to companies throughout the United States with our “Loss Control Management System” since 1992.   Our services provide immediate response to loss control and risk reduction needs by forming a partnership with your company to enhance your bottom line by reducing or eliminating your exposure to Excessive Workers’ Compensation and professional liability insurance premiums as well as compliance with the regulations of the Occupational Safety and Health Administration (OSHA).

We are proud to co-sponsor TPO’s Annual Employment Law & Leadership Conference on January 15. Please stop by our table at the Affiliate Showcase, we look forward to meeting you!

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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!
Thank you for joining!

 

 

 

 

 

 

 

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