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

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:

Excelling As a Manager/Supervisor (Big Sur Station; Big Sur): December 10, 2015

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: December 2, 2015

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:  December 10, 2015

 

IN THIS ISSUE

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

2. FEATURE ARTICLE - California's New Wage Equality Bill; Effective January 1, 2016
      by Jill Russell, SPHR, Principal

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 CA legislative session ended 10/11/2015. Below is a recap of bills Governor Brown signed into law, those he vetoed, and those that did not make it to his desk for consideration:

SIGNED into Law:

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 how much male colleagues are paid. Read more details in this eNews. Effective 1/1/2016

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. Effective 1/1/2016

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 Law –Reasonable 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. Effective 1/1/2016

VETOED by the Governor:

  • Vetoed - Applicant Salary History – AB 1017 would have prevented companies from asking an applicant their prior salary and benefit information.
  • Vetoed – CA Family Rights Act Expansion – SB 406 would have expanded the eligibility requirement from 50+ employees to 25+ employees as well as expanded the family members CFRA could be used for to grandparent, grandchild, sibling or parent-in-law.   
  • Vetoed – Arbitration Agreements – AB 465 would have prevented arbitration agreements as a mandatory condition of employment.
  • Vetoed – Employment Status – AB 676 would have prohibited an employer from asking an applicant to disclose, orally or in writing, the applicant’s employment status.

STALLEDNever made it to the Governor for consideration

  • Stalled – Minimum Wage - Senate Bill (SB 3) would have increased the minimum wage by $3.00 over the next two and a half years and imposes future automatic increases tied to inflation.   
  • Stalled – Paid Sick Leave to Include In-Home Workers - Assembly Bill (AB 1522) would have reversed the exemption of in-home workers from current PSL requirements.   
  • Stalled – Expansion to Paid Family Leave Insurance - Assembly Bill (AB 908) would have expanded from the current 6 weeks, up to 10 weeks of wage replacement benefits.   

IMPORTANT CA monetary changes for 2016!

  • CA Minimum Wage: Increases from $9.00 to $10.00 per hour on 1/1/2016.
  • CA Rate Changes for Employee Exemption: In order to meet the exemption from overtime, breaks, meals and other wage and hour provisions, the following CA minimum rates apply:
  • 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.

 

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).

 

Federal Executive Order – Authorized by President Obama and applicable only to federal contractors (not to private employers) requires up to seven days of paid sick leave per year, earned at the rate of at least one hour of leave for every thirty hours worked. The time can be used to care for themselves and family members, including children, parents, and spouses; it can also be used for work absences that result from domestic violence, sexual assault, and stalking. Effective 1/1/2017.

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

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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One of the Toughest Equal Pay Laws in the County

by Jill Russell, SPHR, TPO Principal

 

SACRAMENTO, CA--OCTOBER 6, 2015: Governor Brown signed Senate Bill (SB) 358 (Conditions of Employment: Gender Wage Differential). This law will be enforced and administered by California Division of Labor Standards Enforcement (DLSE).  The measure amends Section 1197.5 of the California Labor Code relating to private employment. Click here for text of Section 1197.5 prior to the changes to be implemented by the bill.

 

Background
California has prohibited gender-based wage discrimination since 1949. Originally enacted to address the segregation of women into historically undervalued occupation, Section 1197.5 of the Labor Code has evolved over the last four decades. Section 1197.5 is virtually identical to the federal Equal Pay Act of 1963 (29 U.S.C. Sec. 206(d)). However, because the current statutory language makes it difficult to establish a successful claim, the state provisions have rarely been utilized.

According to the report by the California Assembly Appropriations Committee, (SB) 358 is intended to rectify California's "gender wage inequality" by discouraging secrecy among employees regarding their pay.  To that effect, a primary goal of the legislation is increased wage transparency that would make defending against equal pay claims more difficult for employers. The new provisions of Section 1197.5, that go into effect January 1, 2016, would permit open discussion among employees regarding their own pay and that of their co-workers. The purpose of this openness would be to enable employees to discover any wage differentials which the employees could then seek to rectify.  

Key Provisions of the New Law

“Employers must now be particularly diligent in creating and updating compensation policies that provide equal pay for both genders.  Importantly, California also now requires employers to foster – and not discourage – an open and communicative workplace regarding wage equality.” 

Michael C. Saqui,
The Saqui Law Group, Counselors to Management

Previously, obtaining relief under Section 1197.5 required an employee to demonstrate that he or she was being paid at a different rate as a coworker of the opposite sex at the same establishment for "equal work." Under (SB) 358, the requirement of "same establishment" has been deleted, and the employee need only show that he or she is not being paid at the same rate for "substantially similar work” regardless of titles or work location. “Substantially similar work” is determined as a composite of skill, effort, and responsibility, performed under similar working conditions – but it need not be the same exact job or position.

If sued, employers would have to show that wage differences are due to factors other than sex, such as merit or seniority. That the wage differences are job-related, reasonable and not due to discrimination.

Once an employee shows that he or she was paid less than employees of the opposite sex for substantially similar work then (SB) 358 shifts the burden to the employer to affirmatively demonstrate the pay difference complained about was applied reasonably and was based entirely upon any or all of these specific factors:

  • a seniority system
  • a merit system
  • a system that measures earnings by quality or quantity of production, or  a bona fide factor other than sex, such as education, training, or experience
  • Under the current statute as amended, an employer must meet a new and higher standard for demonstrating that any pay difference is tied to an absolute business necessity.  The employer also must demonstrate that its reliance on any or all of the above factors is reasonable, and that one or more of these factors accounts entirely for any wage differential; simply pointing to a factor as partial explanation is no longer sufficient.  As a result, the burden for employers in defending against an equal pay claim under (SB) 358 appears to be significantly greater than the burden under the federal Equal Pay Act of 1963.

(SB) 358 does not alter the damages available to employees for a violation. Employees remain entitled to recover the difference in wages, with interest, and an equal amount of liquidated damages.  Furthermore, payment in full by the employer – and approved by the Division of Labor Standards Enforcement – still results in a waiver by the employee of any civil action under Section 1197.5. 

In that regard, the statute of limitations for such a civil action remains three years, but (SB) 358 amends Section 1197.5 to now require employers to maintain pertinent records for three years instead of two.  An employee who prevails in this type of civil action remains entitled to the costs of the suit and reasonable attorney’s fees.

Notably, (SB) 358 has created a new cause of action through which an employee may obtain redress for discrimination or retaliation by an employer against him/her for invoking enforcement of Section 1197.5 through the disclosure or discussion of wages in the workforce.  While an (SB) 358 cause of action has a one year statute of limitations, its use permits an employee to obtain a redress such as reinstatement and reimbursement for lost wages and benefits, plus interest.

 

Recommendations for Employers
Once (SB) 358 becomes law, employers may see more complaints filed with the California Division of Labor Standards Enforcement (DLSE) or the courts that allege failure to provide equal pay. 

You may wish to consider to taking these steps to ensure compliance with the newly-amended Section 1197.5: 

  • Review all compensation-related policies and procedures including Employee Handbook language to ensure that all additional requirements are met.
  • Update job descriptions and review current wages to ensure that pay differences are related one or more of the four factors above.
  • Train anyone involved in compensation-based decisions on the amended statute's requirements as to the factors upon which compensation decisions can be based.
  • Confirm that an adequate internal complaint / problem solving / feedback procedure exists for voicing concerns and issues and that the workforce and managers are aware of it.
  • Update internal record retention requirements to reflect the new three-year retention period for records of the wages and wage rates, job classifications, and other terms and conditions of employment of the persons employed by the employer.

Be sure to attend TPO’s 12th Annual Employment Law & Leadership Conference on January 21, 2016 to learn more about (SB) 358 and many other critical regulatory updates! Meanwhile, just give us a call with any questions – or for help with (SB) 358 compliance. Click here to register!

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...notice and documentation limitations!

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

 

Most employers (and certainly TPO members and clients) have spent considerable time understanding CA’s Paid Sick Leave (PSL) requirement in order to launch accurate accrual by the 7/1/2015 deadline and then make any changes desired from the 7/13/2015 “fix-it” bill.

  • Quick Recap of PSL: Effective 7/1/2015 CA employers must allow all employees (full-time, part-time, seasonal/temporary, and out-of-state employees working in CA) to take up to 24 hours or 3 days of PSL a year. To request TPO’s recap of PSL, please click here.
  • DIR’s New FAQ’s: The Department of Industrial Relation’s (DIR’s) website updated their FAQ’s in October 2015 (yes, that is a 3 month lag) to reflect the 7/13/15 changes (http://www.dir.ca.gov/DLSE/Paid_Sick_Leave.htm).
Putting it into Action

As employees actually request and use PSL, areas needing clarification are likely to come up. Two common questions:

Do employees have to notify the employer before taking sick leave?

The employee must notify the employer in advance if the sick leave is planned, as may be the case with scheduled doctors’ visits. If the need is unforeseeable, the employee need only give notice as soon as practical, as may occur in the case of unanticipated illness or a medical emergency.

Can an employer require healthcare provider documentation?

This is not specifically addressed in the regulation; however, the law states that the employee must provide “reasonable advance notification.” According to the Labor Commissioner, denying PSL because an employee failed to provide a doctor’s note or other details about the leave may lead to a claim against the employer for violation of the Act. Unless the certification is required pursuant to another leave law, there is no provision in the Act allowing an employer to require certification for paid sick leave. This may require a change to policies.

 

 

 

 

 

 

 

 

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Introducing Our Newest TPO Team Member.

Gina de Miranda, M.A., SPHR, SHRM-SCP, Bilingual HR Consultant

Gina is a senior-level HR professional with over 20 years of HR Generalist background. Her professional certifications include Senior Professional in HR (SPHR) and the Society of Human Resource Management (SHRM) SCP. Gina’s Master’s degree in Mass Communication (minor in Journalism) plus two years of accounting and focus on the science of communications includes quantitative and qualitative analysis of communications methods, message impact and outcomes.

 

Gina specializes in TPO’s HireRight Systems providing expert recruitment and hiring support utilizing legally sound, behavioral-based assessment and selection processes. She has strong presentation and engagement skills and is equally comfortable discussing employment regulations as well as communication and leadership techniques with both employees and key managers.

Gina’s professional accomplishments include:

  • Conducting numerous sexual harassment investigations at a variety of private, nonprofit and public organizations in both Spanish and English.
  • Training and coaching hundreds of supervisors, managers, and executives in basic and complex employment skills, recruitment strategies, time management, and best practices to improve communications, efficiencies, decrease litigation exposure, and increase employee engagement, retention and productivity.
  • Producing, administering and updating comprehensive employment policies, procedures, tools and systems to increase consistency and guide management and executive decision making and implementation.
  • Coaching and advising all levels of organizational leadership regarding employment regulations, conflict resolution, change management, and overall best leadership and HR practices.
  • Researching, selecting and implementing database solutions including manufacturing systems, office automation, CRMs, performance management & review systems and sales information systems
  • Developing new, best practice, methodology for performance improvement plans, overseeing universal adoption.
  • Developing scores of legally compliant employee handbooks adapted for different types of industries, employee populations, cultures and activities.
  • Conducting job analyses and job descriptions for a wide variety of companies from small non-profits to large publicly held entities to identify and correctly describe and categorize jobs under ADAAA, EEOC and FLSA laws.
  • Developing compensation designs including base pay systems, performance management, sales compensation, goal-based compensation, skill-based pay and specialized rewards.
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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!
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