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Ready For The 2018 New Employment Laws for CA Employers?

27 Nov
Not to worry, here is a summary …

For 2018, California employers must be watchful of many new laws, and most are very important, including:
  • Changes in minimum wages
  • Changes required for their employment applications as a result of new state laws including questions they can ask job applicants.
  • New ICE (Immigration and Customs Enforcement).
  • Required Changes including updating with their Employee Handbooks on topics about:
    • Dealing with equal employment policies
    • Their training for sexual harassment
    • Small employers with 20-49 employees – should prepare how to deal with “Baby Bonding” leave for employees with new children.
Below is a summary of some of the significant other topics employers MUST comply to next year.

Minimum Wage:

  • Large businesses with 26 or more employees began complying January 1, 2017. The current minimum wage for large businesses is $10.50 per hour; the rate will increase to $11.00 per hour on January 1, 2018. Large businesses will reach the $15 per hour minimum wage in 2022.
  • Small businesses with 25 or fewer employees had a one-year delay and will see their first minimum wage increase on January 1, 2018; the minimum wage will increase from $10.00 per hour to $10.50 per hour. Do not forget that many cities and some counties have local minimum wage ordinances as well – most of these call for increases on July 1, 2018.
When Hiring:

Salary History do not ask an applicant for employment their salary history, either on an application form or in an interview or otherwise; upon request you must provide the pay scale to an applicant for the position they are applying for.

When Hiring – Criminal History:
If an employer has five or more employees, it is unlawful to inquire about criminal or conviction history of an applicant until after a conditional offer of employment to the applicant; If you obtain or review information (which can only relate to conviction history, not juvenile criminal history or actions related to marijuana offenses more than two years old) and intend to deny an applicant employment based even in part on such conviction history, you must document that you have made an individual assessment whether the conviction history has a direct and adverse relationship with the specific duties of the job justifying denying the applicant the position. Consideration must include:
  • Nature and gravity of the offense
  • Elapsed time that has passed since occurrence
  • Nature of the job; If you have made a preliminary decision not to employ an applicant based on conviction history, the applicant must be notified of the decision in writing, given a copy of the history report, notice of a right to respond, and have five days to respond. If told by the applicant that he/she disputes the accuracy of the report, the applicant has five additional days to respond to the notice. Any final decision by the employer must be in writing.
Handling of Immigration I-9 Forms:

Do not allow any government entity, and specifically DO NOT ALLOW the Customs & Immigration Service, or U.S. Homeland Security to obtain or review your records UNLESS provided a Notice of Inspection. If you receive a Notice of Inspection for I-9 forms, you must post a notice for employees immediately informing them that the process will occur. If the I-9 review raises questions about any particular employee’s status, that employee must be informed and allowed to participate to clarify their status. Also, employers can only “reauthorize” a I-9 form as required by the process.

Employment Policies:
Reproductive Health Rights: Employees have the right to and freedom to make personal decisions regarding reproductive health including the timing of use of birth control drugs and devices, or medical services. These rights are now protected by the Equal Employment provisions of California law and employers may not discriminate on the basis of employee decisions. Employee handbooks must also contain a notice of employee rights and remedies regarding this matter.
New Parent Leave Act:

Employers who have from 20-49 employees as of January 1, 2018 are required to allow qualified employees to take unpaid leave for up to 12 weeks to bond with a new child within one year of a child’s birth, adoption or placement for foster care. There are qualifications defining that the employee must have completed 1,250 hours of work for the company within the past year, and work at a location where there are at least 20 employees within 75 miles of the worksite. NOTE: This leave is in addition to pregnancy leave, which can be for up to four months, and employees are entitled to continuation of health benefits during this leave.

Harassment Training Re: Gender Identity, Expression & Sexual Orientation:  Training which is required regarding prevention of sexual harassment and bullying behavior now must include training inclusive of harassment based on gender identity, gender expression and sexual orientation, in the training all employers with 50 or more employees must provide supervisors and managers for two hours every two years.

For a more detailed review – Click Here.
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What are the chances you are in compliance with California employment and safety law?

7 Sep

There are over 44 Federal and California laws which apply to employers in our state. What are the chances you are in violation of one or more of these laws? What are the potential costs of such exposure?
We have some idea from the recent report of the Labor Enforcement Task Force, under the direction of the Department of Industrial Relations, which is a coalition of California State government enforcement agencies that work together and in partnership with local agencies to combat the underground economy. In this joint effort, information and resources are shared to ensure employees are paid properly and have safe work conditions and honest, law-abiding businesses have the opportunity for healthy competition.
ETF focuses on high-risk industries known to frequently abuse the rights of low wage workers such as:
• car wash,
• restaurant,
• manufacturing,
• roofing,
• construction,
• agricultural and
• auto repair businesses.

Members of LETF include:
• Division of Occupational Safety & Health (Cal/OSHA)
• Division of Labor Standards Enforcement (DLSE)
• Employment Development Department (EDD)
• Contractors State Licensing Board (CSLB)
• California Department of Insurance (CDI)
• Board of Equalization (BOE)
• State Attorney General (DOJ)
These groups as a task force last year inspected over 3,000 firms, and found violations of Cal/OSHA, improper classification of independent contractors who really were employees, wage and hour violations, improper rest and meal periods, etc.
Over 40 percent of businesses inspected are found to be out of compliance with all inspecting agencies. . Cal/OSHA inspected 2,495 firms and found 89% out of compliance, levying fines of $4.3 million. The Division of Labor Standards Enforcement inspected 2,858 firms and found 57% out of compliance and issued fines of $22.3 million. Employment Development Department inspected 3,019 firms and found 68% out of compliance and issued fines and tax penalties of $25.6 million. The average fine or penalty was $17, 000 per firm.
So, what are your chances of being out of compliance? Probably pretty good. You can improve your chances by working with a good human resources and safety consulting firm such as Don Dressler Consulting and CalWorkSafety.com. Check out our website at http://www.CalWorkSafety.com.

You Need to Review Exempt and Salaried Employee Status

7 Aug

A client this past week asked me to review the status of a salaried employee for compliance with the exempt or non-exempt rules of California and Federal law. As it turns out, this key employee is primarily a “doer” meaning a person who handles very important actions every day for the company, but has limited responsibilities which involve independent decision making and the exercise of discretion. Not only that, but in earning about $34,000, the person is on the borderline of earning enough to qualify as an exempt employee by the level of their income.
Certainly – by the first of 2016 – this person would earn too little to qualify as exempt from overtime under the new rules being planned by the US Department of Labor under changes announced to the Federal Fair Labor Standards Act. You may have read in the news that the income level under these planned FLSA changes will go to over $50,000 per year.
Salaried or not, exempt from over-time or not, these are big issues for employers in California and involve a lot of lawsuits and lots of money and potential damage claims. Now is the time for every employer to look at every single salaried employee and ask an employment attorney or wage and hour specialist – am I ok? Do it long before January 1, 2016 while you still have time to make changes and correct any problems.
Let us know at Don Dressler Consulting if you need assistance. Our team of HR consultants are here to help. Email us at dondressler1@hotmail.com

U.S. Citizenship and Immigration Services Issues Guidance on SB 60 Drivers Licenses

4 Jun

U.S. Citizenship and Immigration Services on May 19, 2015 posted on its website guidance for employers of employees who present a driver’s license issued by a state to persons who cannot submit satisfactory proof of legal presence in the United States. In sum, the guidance states that such a license:
• Must be accepted in the Form I-9 employment eligibility verification process as a List B document establishing identity if it otherwise meets the requirements of a List B document (i.e., it contains a photo of or information identifying the individual presenting it) and the employer determines it reasonably appears to be genuine and to relate to that individual.
• Does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge (i.e., knew or should have known) that the employee presenting it is not employment authorized (if that is in fact the case).
In addition, the guidance notes that:
• An employer accepting such a license as a List B identity document in the Form I-9 process must (as for all types of List B documents) also examine a List C document establishing the individual’s employment authorization.
• Under a regulation of the Department of Homeland Security, which houses USCIS, whether an employer is considered to have actual or constructive knowledge that an employee lacks employment authorization is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.
The last point above is made in the context of the federal ban against employing or continuing to employ an employee with knowledge that the employee is not eligible to be employed in the U.S. The DHS regulation noted above states that a “knowing hire” violation can be based on either actual knowledge or constructive knowledge of unlawful status. Constructive knowledge is knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.
The omission from the guidance of any statement that an employer must do anything other than accept such a license as a List B identity document in the Form I-9 process indicates the federal government does not expect an employer to inquire into why an employee claiming employment eligibility has such a license—at least where the employer has no other reason to doubt the employee’s claim.

California Laws Important This Summer of 2015

10 May

California continues to lead the way in expanding the rights of employees and obligations of employers in the workplace in many areas. This should come as no surprise to employers and HR since the California Fair Employment and Housing Act (FEHA) extends protections to almost 20 protected classes and California provides employees with more than one dozen types of leave.
Here are areas that California employers everywhere should take note of as summer 2015 approaches:
1. Paid Sick Leave
Cities around the nation have been active in enacting paid sick leave measures but so far, only three states, including California, have passed paid sick leave laws. Under the Healthy Workplaces, Healthy Families Act of 2014, covered California employers must provide paid sick leave to any employee working in California for 30 days at an accrual rate of one hour for every 30 hours worked.
The law takes effect on July 1, 2015, and it is critical that all California employers be aware of its stringent recordkeeping, notice and posting requirements and update their employee handbooks and paid time off policies accordingly.
2. Abusive Conduct
Awareness of workplace bullying is on the rise, yet no state has enacted a law specifically addressing abusive conduct in the workplace. However, under a new California law that took effect on January 1, 2015, covered California employers required to provide sexual harassment training to supervisors are now also required to include specific harassment training on abusive conduct.
Abusive conduct is conduct that “a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” It may include “repeated infliction of verbal abuse… verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” The law does not create a private cause of action for abusive conduct, but it does require employers to revisit and revise their sexual harassment training to add an abusive conduct component. Don Dressler Consulting provides this training at your location for your supervisors and managers, as well as all employees, if requested.
3. Heat Illness
If you have any employees working out of doors, including truck or other vehicle drivers operating non-air-conditioned vehicles, the company must have a written heat illness prevention plan detailing how it provides training about heat illness, access to plentiful cool drinking water, cooling off periods for employees showing signs of heat illness, and emergency plans when illness occurs. Heat conditions can be a problem at any temperature, but specific rules apply at 80 degrees Fahrenheit, and more stringent high heat rules apply at 95 degrees Fahrenheit.
4. Increased Protections for Immigrant Workers
With the US population becoming more diverse and immigrants entering the workforce at rapid rates, California has passed several measures in 2015 specifically providing increased protections for immigrants and foreign workers, including new laws:
• Prohibiting employers from reporting, or threatening to report, a worker’s (or the worker’s family member’s) immigration status or suspected immigration status to a government official because the worker exercised a right under the California Labor Code;
• Expanding the definition of an unfair immigration-related practice to include threatening to file or filing a false report or complaint with any state or federal agency;
• Prohibiting employers from discriminating, retaliating or taking adverse action against employees based on a lawful change of name, social security number, or federal employment authorization document;
• Making it a violation of FEHA for an employer to require an individual to present a driver’s license, unless a driver’s license is required by law; and
• Amending FEHA to specify that “national origin” discrimination includes discrimination on the basis of possessing a driver’s license issued by the state to undocumented persons who can submit satisfactory proof of identity and California residency.
To keep up to date with California law and to ensure you are in compliance, ask to be added to our The Bottom Line e-newsletter, produced by Don Dressler Consulting and CalWorkSafety.com.
You can sign up by sending us an email or going to our website at http://www.dondressler.com

Which Employment Laws Apply to You – in 2015?

28 Dec

Use the following chart as a guide to determine which labor laws apply to you based on the number of employees you have.

Law/ Requirement All Employers: 1 or more employees

Child Labor ✓
Disability Insurance ✓
Domestic Violence/Assault Victim Leave ✓
Employee Safety (Cal/OSHA-including written safety plan)✓
Fair Employment and Housing (FEHA) ✓
Immigration Reform and Control Act (IRCA-requires I 9 forms) ✓
Independent Contractors ✓
Jury Duty leave ✓
Military Service/USERRA ✓
New Employee Reporting ✓
Paid Family Leave ✓
Paid Sick Leave (effective July 1, 2015) ✓
Posters and Notices (including written notice at time of hire to hourly employees, notices or fliers on workers’ compensation, sexual harassment, disability insurance, paid family leave to all new employees, notices to employees when starting leave of absence and at termination.)✓
Privacy ✓
Sexual Harassment ✓
Smoking in the Workplace ✓
Unemployment Insurance ✓
Unpaid time off to vote ✓
Wages and Hours ✓ (note: there are many details involved just in wage and hour requirements including payment, overtime and recordkeeping.)
Workers’ Compensation ✓

Additional laws if you have 2 or more employees:
Cal-COBRA (health insurance continuation) ✓
Eligible for small group health insurance coverage ✓

Additional laws if you have 4 or more employees:
Discrimination and Foreign Workers ✓

Additional laws if you have 5 or more employees:
Discrimination Laws (State-FEHA) ✓
Pregnancy Disability Laws ✓

Additional laws if you have 15 or more employees:
Americans with Disabilities Act (ADA) ✓
Discrimination Laws (Federal-EEOC) ✓
Organ and Bone Marrow Donors’ Leave ✓

Additional laws if you have 16 or more employees:
Civil Air Patrol Leave ✓

Additional laws if you have 20 or more employees:
COBRA (health insurance continuation Federal) ✓

Additional laws if you have 25 or more employees:
Alcohol/Drug Rehabilitation opportunities allowed✓
Domestic Violence Leave✓
Illiteracy Accommodations ✓
Military Spouse Leave ✓
School Activities Leave✓

Additional laws if you have 50 or more employees:
Affirmative Action (government contractors) ✓
Affordable Care Act (national health insurance reform) ✓
Family and Medical Leave (FMLA & CFRA) ✓
Mandatory 2-Hour Supervisor/Manager Sexual Harassment Training -CA (every 2 years) ✓
Volunteer Firefighters- leave for training ✓

Additional laws if you have 75 or more employees:
WARN Act (plant closings-mass layoffs, notices required) ✓

Additional laws if you have 100 or more employees:
Equal Employment Opportunity Reporting (EEO-1)✓

For more information on these various laws and how they apply to your business, or to discuss a safety and employment law audit, contact: Don Dressler Consulting, 2030 Main Street, Ste. 1300, Irvine, CA. 92614. Ph: 949-533-3742. E-mail: DonDressler1@hotmail.com

Website: http://www.Don Dressler.com and http://www.CalWorkSafety.com