Disclaimer: This legal blog is informational only and is not legal advice. By using this blog, you agree that there is no attorney-client relationship unless agreed to in a separate writing. The information contained will not apply in every case, and we urge you to seek legal counsel if you have questions about your particular situation.
We Offer AB 1825 Sexual Harassment Training
California Assembly Bill (AB) 1825, enacted in 2004, mandates sexual harassment training for California employers with 50 or more employees. Important: when calculating the number of employees, all workers count, whether they are full-time, part-time, or temporary. Even contractors may count, if they are “providing services pursuant to a contract.” If in doubt whether this law applies to you, contact us.
The law requires two hours of interactive training every two years, and to all new supervisory employees within 6 months of taking a supervisory position. Although online training is available, we have found in-person trainings to be most effective, as they force employees to actually pay attention and engage in the topic.
We believe our training also helps your supervisory employees become better leaders, and our frank discussions emphasize the importance of “walking the walk” instead of clicking through a series of webinar slides. Your employees will also be given written materials, including detailed instructions on how to conduct a harassment investigation, should they need to do so. This is also an excellent time for supervisory employees to ask “what if…” questions that help them improve their management skills. We hold trainings here at our office in San Mateo, but we do travel within the San Francisco Bay Area as
We hold trainings here at our office in San Mateo, but we do travel within the San Francisco Bay Area as well, to present to large and medium-sized companies. Contact us today if you’d like to schedule a training.
Are You Keeping Up with Minimum Wage?
In recent years, the conversation around a “living wage” has become more important, especially where cost of living has increased. Many local governments have not waited for the California State Legislature to respond, instead enacting their own wage and hour laws.
References to the Consumer Price Index (CPI) below mean that the minimum wage ordinance has tied future increases in the minimum wage to measures of inflation, so that wages can keep up with cost of living.
Don’t forget, the California minimum hourly wage rises to $10.50 on January 1, 2017 for organizations with over 25 employees.
Employees who are properly categorized as exempt must earn a monthly salary equivalent to at least twice the state minimum wage for full-time employment. Full – time employment is defined in Labor Code Section 515(c) as 40 hours per week. As the California state minimum wage rises, so does the minimum salary threshold for exempt employees.
Below is a chart (by location), showing the next few years of minimum wage increases. If in doubt whether the law applies to your business, contact us – we’ll be happy to help you figure it out.
IMPORTANT: please note that many local laws require that an official notice of the minimum wage law be posted publicly in the workplace. Links to official notices are included below, where available.
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Top 5 Tips to Avoid a Wage and Hour/Unpaid Wages Lawsuit
- Ensure complete and accurate wage statements. Read more
- Provide meal and rest breaks. Read more
- Never pay an employee in cash or “under the table.” Although some employees prefer it because of increased take-home pay, many employers who pay in cash ultimately regret their decision because it can result in a large, unplanned liability and they have a legal obligation to withhold payroll taxes and report employees’ wages accurately. Moreover, it can lead to audits by the EDD, IRS, and other agencies – a very expensive headache!
- Have employees certify in writing that their timesheets are accurate; in writing and in practice, prohibit working “off the clock.”
- Make sure your employees are properly classified as exempt or non-exempt. Read more
Are Your Employees Properly Classified as Exempt or Non-Exempt?
It’s tempting to pay an employee on a salary basis, because payroll expenses are more predictable from month to month. Some employees may request it, for the same reason. However, it is critical that you properly categorize your employees, because misclassification of an employee can lead to claims of unpaid overtime wages and other liability.
5 Steps to ensure you have properly classified all positions:
- Review the Industrial Welfare Commission wage order for your particular industry
- For exempt employees, ensure that the employee is earning a monthly salary at least twice the current state minimum wage for full-time employment, defined as 40 hours per week.
- Evaluate whether the employee meets the “duties test” for an executive, professional, or administrative exemption.
- Evaluate whether there are any exceptions (is the employee employed by the State or local government? Is the employee a parent, spouse, child, or legally adopted child of the employer?)
- Unfortunately, it’s not always clear. If necessary, consult an employment lawyer.
Are You Providing Your Non-Exempt Employees with their Meal and Rest Breaks?
Subject to some industry-specific exceptions, most non-exempt (hourly) employees are entitled to the following breaks:
- One 10-minute (net) paid rest break for every 4 hours worked
- One 30-minute (uninterrupted) unpaid meal break for every 5 hours worked
- If an employee works 6 hours or less, he/she may waive a meal period by mutual consent.
- The second meal break may be waived if a shift is between 6 and 12 hours
For the unpaid meal break, the employee must be relieved of all duty and free to leave the premises; the employer must “permit and authorize” the meal break, and not take any steps to discourage the taking of the break. This includes ensuring that there is enough staffing to relieve the employee; employees often claim that the employer prevented them from taking meal breaks by understaffing.
If an employee is prevented from taking a meal and/or rest break, he/she must be compensated for an extra hour of work at the regular rate of pay for each day and each type of violation; that is, if an employee is prevented from taking both meal and rest breaks, he/she is entitled to two hours of extra pay and that information should be reflected on the paystub.
Meal and rest break claims are often difficult to defend. We suggest the following policies:
- Clearly posting the meal and rest break policy for all non-exempt employees to view
- Periodic reminders of the meal and rest break policy
- Stand-alone signed acknowledgment of the meal and rest break policy by each employee, including designating a person or supervisor to whom missed meal and rest breaks should be reported
- Inclusion of the meal and rest break policy in the employment handbook
Are your paystubs compliant?
We often see lawsuits that include claims for wage statement (AKA paystub) violations. These types of violations are far easier to prevent than they are to fix, and can result in thousands of dollars in penalties. Under Labor Code § 226, each itemized wage statement must include:
- Gross wages earned
- Net wages earned
- Total hours worked (for non-exempt employees)
- Piece-rate units earned and piece-rate rate (if applicable)
- All deductions taken (e.g., for taxes, garnishments, etc.)
- Dates for which the employee is paid
- Name and last four digits of SSN or other employee identification number
- Hourly rates in effect and hours worked at each hourly rate
- Name and address of legal entity that is the employer (and contractor, if the employee is a farm labor contractor)
Additionally, under the Healthy Workplaces, Healthy Families Act, employers must include the days of sick leave remaining (or “unlimited, if that is the case) on the paystub (or a document issued the same day as the paycheck)
Current and former employees have the right to inspect or copy personnel files relating to them (including paystubs), upon reasonable request. Employers must comply as soon as possible but within 21 calendar days from the date of request.
Do you know how to respond to an employee request for disability accommodation?
California and federal law contain strong protections for employees with disabilities, including an employer’s obligation to engage in an “interactive dialogue” and provide reasonable accommodations. A reasonable accommodation is any modification or adjustment in a job, employment practice or work environment that allows an individual with a disability to enjoy an equal employment opportunity and perform the essential functions of the job. Whether a proposed accommodation is reasonable is highly fact-specific; what would be reasonable for one employer or job function may not be reasonable for another.
Examples of reasonable accommodations include, but are not limited to:
- Making physical changes to the workplace (e.g., accessible break rooms, restrooms, parking spaces)
- Acquiring or modifying equipment or devices such as dictation software or headsets
- Providing an unpaid extension of a paid or unpaid leave, to allow the employee to recover enough to return to work in the future
- Allowing assistive animals (assuming such animals are trained to assist the employee, housebroken, and not a threat to health or safety of other workers)
- Modifying a policy
- Telecommuting/working from home
- Job restructuring or reassignment to a vacant position
If an employee requests an accommodation, work with him/her to understand the physical limitations caused by the disability. This may require having the doctor review a list of essential job functions; for this reason, it is advisable to include physical requirements (such as “must be able to lift 30 pounds) in a job description. Engage the employee and find out what the employee believes would allow him/her to perform the job with or without a reasonable accommodation, and document the discussions. Consider explaining the reasons for why a particular accommodation cannot be provided (cost, disruption to operations, etc.)
As an employee, be as clear as possible in communicating, in writing and in person, what accommodations you need in order to perform the job; do not assume that the employer knows. Keep in mind that there are times when the employer, for business reasons, will not be able to provide the accommodation you request. Be persistent, polite, and flexible.
Occasionally, management and the employee are not able to reach a resolution. We can help you manage the accommodation process and coach you on how to respond, whether you are an employee or employer.
Top 5 Changes to Employment Law for 2016
Are you ready for 2016? The new year will bring a number of changes to California employment law. These are the top 5 changes you’ll need to pay attention to.
- Beginning on January 1, 2016, the minimum wage in California is $10.00/hour, up from $9.00/hour. Local minimum wage may be higher.
- Are you complying with California’s Healthy Workplaces, Healthy Families Act? Read FAQs here.
- The Family School Partnership Act applies to employers with 25 or more employees working at the same location, and broadens job protections for employees to take time off from work for school or child care related activities. Here is the updated law.
- E-Verify changes: California employer cannot use E-Verify for current employees or applicants, except where required by federal law. Employers may still use the system to check whether someone who has already been offered employment is authorized to work in the US. There is a civil penalty of up to $10,000 for each violation.
- AB 987 prohibits retaliating or discriminating against an employee for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was ultimately granted. Applies to employers with 5 or more employees.
*** These and other 2016 laws are described in CalChamber’s 2016 overview. If you own or manage a business, CalChamber (California Chamber of Commerce) is a great resource for general compliance materials and information. If you feel you need further guidance specific to your industry, business, or situation, we provide advice and counseling at reasonable hourly rates. Contact us to set up a time to talk.