Governor Newsom Signs New 2020 Employment Laws

                                

In 2019, the California Legislature and 

Governor Newsom enacted 870 bills.

Sunday, October 13, 2019, was the last day for Governor Gavin Newsom to either sign or veto legislation that the California Legislature passed in 2019. Employers need to be aware of a few significant new 2020 employment laws that may affect their daily business operations, policies and employees. Some new laws make significant changes while others make smaller changes to existing law.

Here’s what to look forward to in 2020:

New Employee Classification Test: AB 5 codifies the “ABC” test adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles. The test determines when a worker is an independent contractor, although numerous industry exemptions were included in AB 5.

Expanding Statute of Limitations for FEHA Claims: Someone alleging violation of the Fair Employment and Housing Act (FEHA) currently has one year to file a complaint with the Department of Fair Employment and Housing (DFEH). AB 9 extends that period from one to three years.  

AB 9 is a repeat of 2018’s AB 1870, which Governor Jerry Brown vetoed. Governor Brown believed the one-year limit encouraged prompt reporting and resolution of disputes while evidence and memories are still fresh. Because AB 9 triples the statute of limitations to three years, it will be even more important for employers to keep detailed, accurate and contemporaneous employment-related documentation.

Employee Data Exempt from CCPA … For Now: The California Consumer Privacy Act (CCPA), passed in 2018, changed the rules for consumer data collection, allowing consumers to know about, and have deleted, data that businesses collected about them, among other things. The broad CCPA language encompasses both employees and job applicants, which meant employees, upon request, could potentially ask to have information from their personnel files deleted under the CCPA. AB 25 exempts employee data from the CCPA; however, the exemption is only good for one year.

Banning Mandatory Employment Arbitration Agreements: AB 51 attempts to effectively ban mandatory arbitration agreements with employees. Last year, Governor Brown vetoed a virtually identical bill, AB 3080, citing his recognition that the bill “plainly violates federal law.”

This bill does not apply to any arbitration agreements entered into prior to January 1, 2020, so employers may wish to seek legal counsel on how to proceed with amending their arbitration agreements after January 1, 2020.

Expansion of Paid Family Leave: Under SB 83, beginning July 1, 2020, the maximum duration of Paid Family Leave (PFL) benefits an individual can receive from California’s State Disability Insurance program will be increased from six to eight weeks.

Expanded Lactation Accommodation Requirements: SB 142, modeled after San Francisco’s lactation accommodation ordinance, expands employer requirements to provide appropriate workplace lactation accommodations. Specifically, a lactation room must be close to the employee’s work area, shielded from view, free from intrusion and have certain features, like electricity. The employer also must provide access to a sink with running water and a refrigerator. Employers must also create and implement a lactation accommodation policy.

Prohibiting Discrimination Based on Protected Hairstyles: SB 188 expanded the definition of race under the FEHA to prohibit racial discrimination and harassment based upon a person’s natural hairstyle. Most significantly, this impacts workplace dress codes and grooming standards that prohibited certain hairstyles. Under SB 188, natural and “protective” hairstyles such as “braids, locks, and twists” are now protected.

Extending the Deadline to Complete Sexual Harassment Prevention Training: SB 778 extends the sexual harassment prevention training deadline under SB 1342 from January 1, 2020, to January 1, 2021.  

Governor Newsom also vetoed several CalChamber-opposed bills, including:

• AB 589 would have, among other things, created onerous requirements for employers to post and provide employees with a “Worker’s Bill of Rights,” have the employees sign it, provide a copy, and keep the original for three years. It also would have created duplicative civil penalties. Governor Newsom recognized the bill’s requirements were overly burdensome for employers in his veto statement.
• SB 218 would have amended the FEHA to allow local governments in Los Angeles County to enact their own anti-discrimination ordinances similar to the FEHA, which would have created uncertainty, inconsistency, and confusion with regard to the application and interpretation of the FEHA.

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Article published in: HRWatchDog /Preseted by Cal Chamber
Article published on: Oct 15, 2019 - by: James W. Ward
Article spotted by: Louise Burden

Choosing Unpaid Time Off Instead of Using Vacation Time

Can employees choose to take unpaid time off instead of using their accrued paid time off? 

My employee asked for a few days off for a vacation with her family but wants to take it unpaid rather than using the vacation time she has accrued. Can I require her to use her paid vacation time before taking unpaid time, or does she have the right to save her vacation time to use in the future?

An employer may require an employee who is taking a vacation to use accrued paid vacation time rather than taking unpaid time off. Vacation pay is not required by law, although when it is offered, certain accrual and vesting rules do apply in California.

However, no law specifies that employees have an absolute right to determine when they want to use their paid vacation. Therefore, you may require your employee to use her paid vacation in this instance rather than going unpaid and saving the paid vacation time for a later date.

Handbook Policy

It is a best practice to include language in an employee handbook stating that accrued paid vacation time must be used if available when taking time off for vacation purposes.

Even without this specific language in a handbook, however, an employer still may require the use of accrued paid vacation time since nothing in the law would prohibit such a requirement.

Exceptions for Certain Leaves

Note that certain state and federal leave of absence laws limit when an employer may require the use of paid vacation.

For example, an employee taking a leave of absence for pregnancy disability may not be required to use her vacation pay during the leave, although she may choose to do so at her option.

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Article written by: Ellen Savage, J.D.
Article published on: HRwatchdog-presented by Cal Chamber Sept 10, 2019
Article spotted by: Louise Burden

It’s Heating Up: Several California Cities Prepare For Mid-Summer Minimum Wage Increases LinkedIn

We are halfway through 2019, and while many employees prepare for summer vacation, California employers in various cities should brace themselves for an additional round of minimum wage increases on July 1, 2019.

Another raise, already?

As you may recall, on January 1, 2019, California raised the statewide minimum wage rate to $12.00 per hour for employers with 26 or more employees, and $11.00 per hour for employers with 25 or fewer employees. And the California minimum wage is set to increase to $15.00 per hour for all employers by January 2023.

To complicate matters further, many local ordinances mandate minimum wage rates above the state minimum. In fact, over 25 California municipalities have enacted their own minimum wage rates, with several already mandating a minimum wage of at least $15.00 per hour, including: Cupertino, Berkeley, El Cerrito, Emeryville, Los Altos, Mountain View, Palo Alto, Richmond, San Francisco, San Jose, San Mateo, Santa Clara, and Sunnyvale. This exceeds the California minimum wage and is far above the federal minimum wage rate of $7.25.

While several municipalities plan to raise their minimum wages annually on January 1 of each year, several are poised to raise their minimum wage rates on July 1, 2019, as follows:

• Alameda: $13.50 per hour
• Berkeley: $15.59 per hour
• Emeryville: $16.30 per hour
• Long Beach Hotel Workers and Concessionaires:
  • $14.97 per hour (Hotel workers)
  • $14.72 per hour (Concessionaires)
• Los Angeles City and County (including Malibu, Pasadena and Santa Monica):
  • $14.25 per hour (employers with 26 or more employees)
  • $13.25 per hour (employers with fewer than 26 employees)
  • $16.63 per hour (Hotel workers at Los Angeles hotels with 150 rooms or more and at all Santa Monica hotels)
• Milpitas: $15.00 per hour
• San Francisco: $15.59 per hour

In addition to increasing the minimum wages annually on July 1, several of these municipalities intend to reach and/or surpass $15.00 in the near future through annual cost of living adjustments based on the consumer price index.

California Statewide Minimum Wage Remains Unchanged

Despite the July raises, California’s statewide minimum wage rate will not change until January 1, 2020. And California’s minimum wage is set to adjust on a yearly basis through January 1, 2023.  

Schedule for California Minimum Wage Rates 2019-2023
Date	Minimum wage for employers with fewer than 26 employees	Minimum wage for employers with 26 employees or more
Jan 1, 2019	$11.00	$12.00/hour
Jan 1, 2020	$12.00	$13.00/hour
Jan 1, 2021	$13.00	$14.00/hour
Jan1, 2022	$14.00	$15.00/hour
Jan 1, 2023	$15.00

 California’s Minimum Salary Threshold For Exempt Employees Remains Unchanged 

California employers should review their compensation policies for non-exempt employees and ensure their payroll systems address the new state and local minimum wage rates.

Although these minimum wage changes primarily affect non-exempt, hourly employees, employers should keep in mind that exempt employees (otherwise not entitled to overtime) must earn a minimum annual salary equal to two times the state’s minimum wage rate. Therefore, the January 2019 minimum wage raises increased the annual salary thresholds for exempt employees to $49,920 (from $45,760) for employers with 26 or more employees, and to $45,760 (from $43,680) for employers with 25 or fewer employees. The July 2019 increases do not change these thresholds.

Salary Thresholds For Overtime May Increase On The Federal Front

At the federal level, while minimum wage remains $7.25 per hour, the Department of Labor Wage and Hour Division has proposed rulemaking to increase the number of workers eligible for overtime. Currently, employees with a salary below $455 per week ($23,660 annually) must be paid overtime if they work more than 40 hours per week. The proposal would boost the threshold to $679 per week (equivalent to $35,308 per year), thus potentially increasing employers’ obligation to pay overtime to a larger population of their workforce.

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Article written by: Orrick Employment Law Group
Article published on:  June 26, 2019 JDSupra legal news
Article spotted by: Louise Burden

Uber and Lyft Leaders Speak Out Against California Contractor Bill

Proposed legislation would codify the state’s stringent independent-contractor test.

Uber and Lyft have teamed up to combat proposed legislation in California that would make many of the state's gig workers employees—rather than independent contractors—unless an exception is added to the bill.

In Dynamex Operations West v. Superior Court, the California Supreme Court adopted a narrow three-factor test to determine whether workers are employees or independent contractors under the state's wage orders. To be classified as an independent contractor, one factor requires that workers perform tasks that are outside of the usual course of the hiring entity's business. This creates a dilemma for gig-economy businesses that rely on independent contractors to deliver core services.

AB 5, which recently passed the California Assembly, would codify the state high court's test and clarify how the new standard would be applied to jobs in the state (if it is approved by the Senate).

The distinction between employees and independent contractors is significant: Employees are entitled to minimum wage, overtime pay and other protections that are not afforded to independent contractors, who may work for themselves or for several employers.

We've rounded up the latest news on this topic from SHRM Online and other trusted outlets.

Company Executives Offer Compromise

Uber chief executive Dara Khosrowshahi, Lyft chief executive Logan Green and Lyft president John Zimmer published an opinion piece June 12 in the San Francisco Chronicle. They noted that a change to the employment classification of ride-hailing drivers would put their businesses at risk and that many drivers want the independence that comes with contractor status. "Speak with drivers, and they will tell you they are attracted to the work because of the flexibility it affords," they wrote. The companies' leaders suggested starting a collaborative driver association. They also said that amending existing law to "allow for a system of worker-determined benefits—from paid time off to retirement planning to lifelong learning—could deliver a measure of security that independent workers currently lack."

(San Francisco Chronicle)

Worker Advocates Aren't Persuaded

Employee advocates called the Uber and Lyft leaders' opinion piece vague. "They know they are losing and are desperate to change the PR without offering any details that help workers," said Assemblywoman Lorena Gonzalez (D-San Diego), who authored AB 5. When gig workers are classified as independent contractors, "taxpayers are on the hook for providing social services for employers who don't do the right thing," she said. Ride-hailing drivers also raised objections to Uber's and Lyft's practices during a strike in May. "The gig app industries are making bazillions for the few, while drivers starve," said Lyft driver Nicole Moore. 

(Los Angeles Times)

The Dynamex Case

According to the three-pronged (or ABC) test, the state considers a worker an employee unless the hiring entity establishes all  of the following factors:

• The hiring entity does not control or direct the work, both in fact and according to the contract for the work's performance.
• The worker performs tasks that are outside of the usual course of the hiring entity's business.
• The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.

The Dynamex decision not only expanded the definition of "employee" under the California Wage Orders, but it also places the burden on companies to prove that independent contractors are properly classified.

(SHRM Online)

[SHRM members-only resource: California Labor and Employment Law Overview]

Some Exceptions Added to Bill

The Dynamex decision only applies to wage orders. However, if passed, AB 5 would extend the ABC test to all provisions of the California Labor Code and Unemployment Insurance Code unless another definition of "employee" is provided. So, for example, the ABC test would apply to a labor-code claim for wrongful termination in violation of public policy. Although the bill would exempt certain occupations—such as doctors, investment advisors and some direct sellers—gig-economy workers aren't included in the exemptions. The business community is trying to change that before the bill is finalized.

(SHRM Online)

Gap Between Federal Direction and State Law Grows

Classifying workers as independent contractors or employees was already a contentious issue in the workplace before the rise of the gig economy, and recent developments have only muddied the waters more. As California doubles down on the state's more-restrictive standard, a new federal opinion letter made it easier for employers to classify a worker as an independent contractor under the Fair Labor Standards Act.

(SHRM Online)

Click here to read the full article.....

Article written by : Lisa Nagele-Piazza, J.D.,SHRM-SCP
Article published by : SHRM - June 14, 2019
Article spotted by : Louise Burden

California Independent Contractor Test Applies Retroactively

The U.S. Court of Appeals for the Ninth Circuit in San Francisco is pictured.

Photo by Justin Sullivan/Getty Images

A California Supreme Court ruling that created a strict standard for determining who is an “employee” applies retroactively, the Ninth Circuit held May 2 in a ruling expected to have a wide reach.

The decision means a legal test created last year by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court—making it harder for companies to classify workers as independent contractors—will be applied to cases going forward, as well as to disputes dating back to before the new test was enacted. Formal “employee” status comes with additional rights and benefits to workers.

The U.S. Court of Appeals for the Ninth Circuit’s opinion has major implications for California employers that rely on independent contractors, including gig economy companies like Uber Technologies and Postmates, and could even compel some businesses to simply reclassify contractors as employees and change pay and benefits. It comes as Uber plans to raise as much as $9 billion in what is expected to be the biggest initial public offering of stock thus far in 2019.

The ruling also has important effects on franchised businesses like McDonald’s and international commercial cleaning company Jan-Pro—the defendant in the Ninth Circuit case. Making the Dynamex decision retroactive subjects employers to liability for misclassifying workers as contractors potentially going back four years before the 2018 decision, based on California’s statute of limitations, said Jeffrey Horton Thomas, a management-side lawyer in the employment practice group at Akerman LLP’s California office.

“Today’s Ninth Circuit ruling is the clearest decision yet that the Dynamex decision will be given retroactive effect,” Thomas said. He said the ruling, “could be “devastating to many businesses and requires their attention now.”

Jan-Pro will petition for a re-hearing on the issue, O’Hagan & Meyer’s Jeff Rosin, the company’s attorney, said in an email to Bloomberg Law. He said the issue wasn’t correctly decided and is of “critical important to the case and it’s unique procedural history, as well as other cases.”

The ruling is significant and strongly re-emphasized the strength and clarity of the ABC test, said Shannon Liss-Riordan, an attorney at Lichten & Liss-Riordan P.C., who represented Gerardo Vazquez and other plaintiffs in the case. She said the detailed ruling also provides guidance to lower courts on specifically how the prongs of the test should be interpreted.

The ruling should be a signal that many companies need to re-classify its workforce, she said.

“I believe that the Dynamex decision made that clear and it should have been clear last year, but I believe it makes it clear all over again,” Liss-Riordan told Bloomberg Law. She previously brought cases against companies, such as Jan-Pro, and prevailed on the same argument in Massachusetts, which has a similar worker classification test.

Some companies may have alternatives besides turning contractors into employees, said Richard Reibstein, a management-side partner at Locke Lord LLP in New York who heads the firm’s independent contractor misclassification and compliance practice.

“The Ninth Circuit’s decision, even if the reasoning is subject to question, is now the law in the federal courts determining independent contractor status under California law for so-called ‘wage order’ claims,” Reibstein said.

Gig Companies Face ‘Uphill Battle’

Dynamex established a three-factor “ABC” test to answer whether a worker is a legal “employee” in cases brought under California wage laws. To prove a worker isn’t actually a formal employee, companies have to show the worker has freedom from control over how to perform the services provided; that the services are outside the business’s normal variety or workplace; and that the worker is engaged in an independently established role. The test replaced a multifactor analysis that made it easier for companies to argue workers should be classified as contractors.

Applying Dynamex retroactively is consistent with the state’s “legal tradition,” Judge Frederic Block wrote in the Ninth Circuit’s opinion. The California high court also denied a petition asking it to state that the Dynamex decision should be applied prospectively only—"a data point for us to consider,” Block said.

There’s also no indication that California state courts are likely to limit the Dynamex test to new cases, the Ninth Circuit said.

Businesses have said the standard has the potential to upend gig economy companies whose business models are often based and reliant on independent contracting.

The ruling prompted new litigation against the companies, who’ve generally argued that the test shouldn’t be retroactive and should be applied narrowly. The Ninth Circuit’s May 2 decision potentially telegraphs the outcome of a closely watched battle over worker classification against GrubHub, widely considered a case to test the gig economy’s business model.

The Ninth Circuit cited cases involving a limousine business and timber harvester to “make clear that gig economy companies like Uber and Lyft face an uphill battle in asserting that their business is their app, rather than providing rides to customers,” Michael Rubin, a labor-side attorney at Altshuler Berzon LLP in California, told Bloomberg Law. Rubin filed amicus briefs as a representative of unions and worker advocacy groups in the Dynamex case and participated in oral arguments.

“The analysis shows that the focus is not how a company accomplishes its core business objectives, but what that core business objective is, whether transporting passengers or harvesting timber,” Rubin said.

The court’s findings on that end will likely present a challenge to gig economy companies trying to prove the ‘B’ part of the new test—that services provided by a contractor are outside the business’s normal variety.

Liss-Riordan, who represents driver Raef Lawson in the GrubHub case, cited the Dynamex decision in her appeal and said the new ABC test clearly means Lawson’s an employee and not an independent contractor.

Franchises On Hook

The Ninth Circuit’s decision also has particularly important application to businesses that use a franchise model.

That industry and a representative lobbying organization, the International Franchise Association, has been urging lawmakers and courts for a number of years to limit franchisors’ vicarious liability or ‘joint employment’ liability—in other words, to limit circumstances where both a parent franchisor and franchisee can be held liable for employment illegality.

“Many franchisors and the IFA have long insisted that franchisees and franchisors are entitled to special protections under California wage law, and the Ninth Circuit in this opinion made clear that’s not the case,” Rubin said.

The court essentially held that the “ABC” test applies to both a franchisee and the parent franchisor when deciding whether a group of workers are formal employees, pointing to increased exposure to liability for franchisors.

The “applicability of Dynamex in this case presents an unfair situation whereby a franchisee who severed his franchise relationship a decade ago” would “have his case analyzed against JPI under a legal standard adopted last year,” Rosin said.

“Short of legislative relief or intervention by the U.S. Supreme Court, California’s 76,000 franchise hotels, gyms, restaurants, and retail stores will live in legal uncertainty for the foreseeable future,” said Matthew Haller, a senior vice president at the IFA. The “9th Circuit has created an anti-business atmosphere that will make both franchise investors and entrepreneurs skeptical of opening or expanding in California.”

Case Returns to Lower Court

The decision means Jan-Pro must defend class claims that it illegally designated California employees as independent contractors.

The Ninth Circuit rejected Jan-Pro’s argument that retroactive application would be unfair to business owners. Limiting application of the ABC test to new cases only would defeat the remedial purposes of California wage law cited by the state supreme court, Block said.

Retroactive application ensures that the workers who sued Jan-Pro can provide for themselves and their families, Block said. It also protects the janitorial industry as a whole “by putting Jan-Pro on equal footing” with other businesses, and shields California from the burdens of having to support citizens who are paid “substandard wages.”

A lower court that had dismissed the claims must now reexamine the case under the ABC test.

Please click here to review the article....

Article written by:  Hassan A. Kanu, Erin Mulvaney and Patrick Dorrian

Article published on: May 2, 2019 - Bloomberg Law 

Article spotted by: Louise Burden

New California Required Harassment Prevention Training FAQs White Paper

Our latest white paper answers all your questions about 

the new harassment prevention  training requirements.

You’ve all heard the news that California employers with five or more employees located anywhere must now provide sexual harassment prevention training to all employees— not just supervisors, as was the previous law.

You’ve also heard that the training must be two hours in length for supervisors and one hour for all non-supervisory employees.

And, you’re also probably aware that, at the time of publication, the California Department of Fair Employment and Housing (DFEH) has said all employees must be trained in the 2019 calendar year to comply with the January 1, 2020, deadline — which means that all employees who trained in 2018 or before must retrain in 2019.

But as we learned in January from the roughly 1,000 Employment Law Update seminar attendees throughout the state, many questions about complying with the new training requirements remain.

CalChamber’s new white paper, Required Harassment Prevention Training FAQs, answers all of those questions. In the white paper, you’ll learn:

•       > Who is considered a “qualified trainer;”
• 
  
• > Whether you must train seasonal or temporary employees;
• > The various types of training that comply with the requirements;
• > How long the training must be; and
• > Much more.

Click here to read the full article.......

Article published on:  March 29, 2019 @ hrwatchdog.calchamber.com

Article written by: HR Watchdog staff

Article spotted by:  Louise Burden

New Dads Can Bond with Baby Too!

"Baby bonding applies to a biological, adoptive or foster care dad, stepdad, legal guardian or someone who stands in the shoes of a dad in relation to care of a baby or child, otherwise known as “loco parentis.”

        Our employee’s wife just had a baby and he is asking us if he can take time off work and how much he will get paid. What are we required to do? We have never had this come up before.

Many people think baby bonding applies only to moms, but it also applies to a biological, adoptive or foster care dad, stepdad, legal guardian or someone who stands in the shoes of a dad in relation to care of a baby or child, otherwise known as “loco parentis.”

California Laws

Time off for bonding in California is required under two laws that apply to employers depending on company size.

• -The New Parent Leave Act (NPLA) went into effect January 1, 2018 and applies to employers of 20 or more employees.
• -The California Family Rights Act (CFRA) of 1993 applies to employers of 50 or more employees.

To be eligible for either of these leaves, an employee would have to have been employed for one year and worked 1,250 hours during the last 12 months before the leave.

If these eligibility requirements are met in addition to the number of employees required to be employed within a 75-mile radius, then the employee is entitled to 12 weeks of baby bonding leave that may be used any time within 12 months of the birth of the child, or placement for adoption or foster care.

Paid Time or Not?

No law requires that the employer pay the employee for this leave; however, an employee may file for partial wage replacement by filing a claim for Paid Family Leave (PFL) with the Employment Development Department. Employers are required to provide the employee with the PFL brochure that explains this benefit.

Companies that are not covered by these laws may choose to provide time off or not. For example, an employer of 5 employees may provide its employees with 6 weeks of leave for baby bonding. Because 6 weeks is the amount of time that an employee may receive PFL benefits, it often is looked at as the time for the leave.

Lastly, always consider if the employee has accrued sick, vacation or paid time off. If so, the employee could use available paid time off for baby bonding.     

Click here to read the full article.....

Article written by: Sunny Lee (Staff Contact)

Article posted on: March 19, 2019 - HRWatchdog-presented by Cal Chamber   

Article  spotted by: Louise Burden                                                                  

Avoiding Workplace Discrimination in the Wake of Mass Violence

The morning after any kind of mass violence playing on loop on every media outlet poses unique challenges to employers and managers. Not only can workplace conversations turn uncomfortable and potentially inappropriate, but trauma that is not adequately addressed can have a direct impact on workplace productivity.  How can an employer respond to emotional discussions while being sensitive to employees whose racial, religious, sexual, or ethnic identity was a focus of the underlying attacks and is a subject of media attention?  Many employers feel inadequately prepared; while sensing that silence leaves a vacuum in which conversations about the “news” may be awkward and result in misunderstanding or trample on sensitivities, they may not have thought about how to address such unfortunate situations.  Addressing the issue head-on can provide employees with the sense of support needed to prevent workplace disputes.

Here are some practical “Dos and Don’ts” to assist employers in navigating a response in the wake of domestic or international mass violence events.   

Dos:

• Reiterate the company’s policies against workplace violence, discrimination and harassment, encouraging employees to report any behavior that violates company policy. Remind employees of the avenues available for reporting workplace violence, discrimination and harassment and the company’s non-retaliation policy.
• Reinforce the company’s appreciation of its diverse workforce and its commitment to supporting employees of all ethnic, racial, religious, sexual, or other minority backgrounds.  
• If the company decides to send out an e-mail to its workforce on the topic, to the extent that it is feasible, identify available resources for individuals to process the trauma, such as employee assistance programs, therapy services, hotlines, or mental health resources otherwise provided by the company.
• Advise employees to exercise caution in social media posts in accordance with company policy.
• Reach out to diversity experts and community leaders when in doubt on how responses should be formulated in a culturally sensitive manner.
• Employ experts to provide sensitivity training to management, especially if the workforce has a challenging history in terms of prior employee or manager conduct with regard to issues of race, religion, ethnicity, gender, sexual orientation, disability, or other protected characteristics.  

Don’ts:

• Don’t place any direct or indirect pressure on particular individuals or groups (i.e., racial group or affinity groups) to address the issue.
• Don’t discourage, directly or indirectly, the use of personal time to deal with the aftermath of trauma. Indeed, forcing non-essential employees to report to work when they are not ready to casually socialize could be a recipe for inappropriate conversation.
• Do not forget that anniversaries of mass violence are triggers that reignite the underlying issues and concerns.  Just as 9/11 continues to have a rippling effect on social media and news outlets on an annual basis, be aware that anniversaries of other traumatic events may have a similar impact.
• Do not simply cut/paste prior responses or responses by other organizations, which may come off as disingenuous.
• Do not formulate diversity initiatives as a knee-jerk reaction.  Instead, be thoughtful and, if needed, consult with others who have successful diversity committees, events, or groups to learn how to authentically encourage diversity.   Take the time to get it right. 
• Do not forget that if the perpetrator of the underlying violent event is of a particular racial, political, religious or other identifiable group, employees who also belong to that group may similarly need support in dealing with workplace issues.  Thus, any response should be carefully tailored to address sensitives that may arise by employees whose backgrounds correlate with both the victims of violence as well as the background of the perpetrator of violence.

It cannot be overstated that any response to mass violence should be carefully and specifically tailored to address both the unique circumstances of the event as well as the particular needs of the workforce. 

Click here to read the full article....

Article written by: Fatemah Mashouf

Article published on: March 15, 2019,  by Littler

Article spotted by: Kathryn Benson and posted by Louise Burden

Heat Illness Prevention in Indoor Workplaces

Cal/OSHA is in the process of developing regulations to prevent heat illness in indoor workplaces.

The California Division of Occupational Safety and Health (Cal/OSHA) is in the process of developing regulations to prevent heat illness in indoor workplaces.

A California Chamber of Commerce-led coalition has submitted written comments and oral testimony at each step of the process encouraging Cal/OSHA to establish rational policies that are not unnecessarily burdensome on employers while minimizing the risk of heat illness to workers in indoor workplaces.

Comments on the latest draft of the standard, released on January 29, are due on February 22.

The background information below is excerpted from the CalChamber 2019 Business Issues and Legislative Guide article written by CalChamber Policy Advocate Marti Fisher before her retirement at the beginning of this year.

• In 2016 the Legislature passed SB 1167 (Mendoza; D-Artesia), directing Cal/OSHA to develop a regulation to prevent heat illness amongst indoor workers and submit it to the Cal/OSHA Standards Board by January 1, 2019. Formal rulemaking was to follow.

• In 2017 and 2018, Cal/OSHA held three stakeholder work group meetings, known as Advisory Committees, to review draft rules. Subsequently, three additional drafts were released to which stakeholders submitted written comments.

• A draft rule was circulated by Cal/OSHA to stakeholders October 24, 2018, with written comments submitted by the CalChamber-led coalition on November 20, 2018.

• All drafts of the rule and public written comments are available at dir.ca.gov/dosh/doshreg/Heat-illness-prevention-indoors/.

Impact on Business

Cal/OSHA intends to classify all workplaces as either indoor or outdoor. The new regulation will apply to all indoor workplaces across all industries. However, some indoor workplaces will not be subject to the requirements if the temperatures are below the threshold, which as of the October 24, 2018, draft is in most cases 82 degrees.

The rule generally follows the framework adopted for outdoor heat illness prevention Section 3395 (water, rest, shade, training, written plan), to minimize the burden of compliance on employers, particularly those with both indoor and outdoor workplaces.

CalChamber’s primary concerns with the proposed rule are as follows:

• Many employers have both outdoor and indoor workplaces, with some or all employees transitioning between both. Therefore, indoor and outdoor rules must be harmonized so that employers with both indoor and outdoor workplaces can comply by integrating the plans into one heat illness prevention plan.

• The most recent proposal defines “indoor” essentially as a space under a ceiling and enclosed along its perimeter. This definition does not contemplate structures with chain link fences, guardrails or partial walls along perimeters. A clear and specific definition is required so that employers can identify a workplace as indoor or outdoor.

• The manner in which vehicles and equipment will be handled (for example, forklifts operated inside a warehouse, or outside, and tractors with fully or partially enclosed cabs) could present significant challenges for employers. Pick-up and delivery operations where employees are in and out of vehicles that may not be air conditioned and may or may not be fully enclosed also require clear definition and direction for employers to properly apply the rules.

Today, employers subject to the outdoor heat rule include their equipment operators and vehicle drivers in their outdoor program. Cal/OSHA has not yet proposed a workable policy.

• Engineering controls for heat exposure in indoor workplaces must be not only feasible, but reasonable for employers to implement while protecting employees.

• Record retention should conform to general record retention requirements of the Injury and Illness Prevention Program (IIPP)—one year. In Cal/OSHA’s October 24, 2018, proposal, records of indoor temperature assessments would have to be retained for more than 30 years.

Anticipated Action in 2019

The statutory deadline for Cal/OSHA to submit a proposal to the Cal/OSHA Standards Board was January 1, 2019. Subsequent to the board’s receiving the proposal, many steps will be taken before formal rulemaking, which is anticipated to begin sometime in 2019.

As it has throughout the pre-rulemaking process, the CalChamber-led coalition will continue to provide thoughtful, rational comments and regulatory language to Cal/OSHA to ensure clarity that will lead to effective compliance by employers while improving employee safety.

Click here to read CALChambers position......

Article written by:  Jennifer Barrera / HRwatchdog/Presented by: Cal Chamber

Article posted on: Feb 20,2019

Article spotted by: Louise Burden

All Minutes Count When Paying California Employees

When paying employees in California, 

every minute they perform work counts toward their paycheck.

Our nonexempt employees answer texts and calls after-hours. Is this work time and how much time would we pay for a five-minute call, for example?

Yes, in most instances, answering short calls, texts and emails would meet the definition of hours worked found in the Industrial Welfare Commission Orders, Section 2:

“Hours worked” means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

De Minimis Time

These small increments of time are difficult to track and frequently are disregarded as “de minimis” time that is insignificant. In fact, the federal Fair Labor Standards Act allows employers to disregard small amounts of time as de minimis time. Disregarding these small increments is no longer advisable in California.

California Law

In 2018, the California Supreme Court held that the de minimis rule has not been adopted by California laws. According to the court, don’t allow employees to routinely work for minutes off the clock without being paid — because California labor laws require pay for “all hours worked.”

Even when the time is hard to track, time records should reflect all time worked, including any time worked after an employee’s regular hours. Develop a policy advising employees how to report all off-the-clock work time.

When it is not necessary that employees answer after-hours calls, employers may prohibit employees from working off the clock. Have a clear policy advising employees not to make calls or respond to any inquiries or to perform any off-the-clock work. It is good practice to train managers to refrain from contacting employees before or after their shift. Managers also should review time records and confirm that employees are following the policy.

When employees happen to work in violation of your policy, be sure to pay for the time, but disciplinary action is an option.

Consult with legal counsel about paying for small amounts of time worked beyond the regular schedule.

Click here to read the full article....

Article written by: Barbara Wilber
Article posted on: Jan 22, 2019 on HRWatchdog
Article spotted by: Louise Burden

Looking Behind and Ahead: “Top 8” Posts of 2018

Even though we are approaching the end of January, let’s take one last fond look back at 2018.

2018 was quite a year for employers with several new laws and regulations: an intern test, laws on using salary history in hiring decisions, national origin protections and many others.

Here are the “Top 8” blog stories of 2018 and how they may impact 2019.

1. 2018 IRS Mileage Rates

Every year, the IRS updates the optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical and moving purposes. Make sure you have the new 2019 mileage rates!

2.Tax Reform Impact on Employers and Employees

We summarized some of the most important Tax Bill provisions impacting employers with respect to their employees.

3. 2018 Tax Withholding Information Is Here

The IRS released new 2018 withholding tables to reflect changes due to the tax reform legislation. Make sure you are using the new 2019 W-4 — Employees Withholding Allowance Certificate.

4.Governor Signs New California Employment Laws for 2019

 We discuss some of the new laws that took effect January 2019. Make sure you know about the new 2019 labor laws affecting California employers. Download our free white paper(CalChamber members can download it here).

5.  California Ranks as No. 2 ‘Judicial Hellhole’ in Nation Again

In 2017-18, California held the number two spot for having the “most unfair” civil litigation courts. Spoiler alert: We are back to number one!

 6. ICE Raids and What California Employers Need to Know About New Laws

California employers need to be prepared for ICE raids and comply with the new Immigrant Worker Protection Act. Even though a court put part of the new law on ice, ICE worksite enforcement is on the rise — make sure to check your Forms I-9.

7. California Supreme Court Adopts New Independent Contractor Test

The California Supreme Court issued its much anticipated decision on which test should be applied when determining whether an individual is an employee or an independent contractor. In October, the California Court of Appeal confirmed the new test only applies for wage order violations and the long-standing (and more flexible) Borello test will continue to apply to any and all non-wage order claims.

8. California Supreme Court Issues Worker Friendly Overtime Ruling

The California Supreme Court ruled that an employer must calculate the regular rate of pay by dividing the employee’s total compensation by the number of non-overtime hours an employee worked during the pay period, rather than the total number of hours the employee worked, including overtime hours. However, the decision left employers with uncertainty

Click here to be directed to the HRWatchdogs full page of articles......

Blog posted by: Editor Katie Culliton  Jan 15, 2019  (various authors)  

Blog written for:  HRWatchdog

Blog spotted by: Louise Burden