Employment Law Bulletin | July 27, 2023

New Form I-9 Available on August 1, 2023

On August 1, 2023, the Department of Homeland Security (“DHS”) will publish a revised version of Form I-9 Employment Eligibility Verification (“Form I-9”).  The Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States.  All U.S. employers must properly complete the Form I-9 for each individual they hire.

The new August Form I-9 will replace the Form I-9 published on October 21, 2019, which is still in use despite an October 31, 2022 expiration date.  Employers can use the October 21, 2019 Form I-9 through October 31, 2023.  Starting November 1, 2023, all employers must use the new Form I-9.

Check the DHS website on August 1 for the new Form I-9.

DHS Announces Remote Option to Review Employment Eligibility Verification Documents for Completing the Form I–9

On July 25, 2023, the DHS announced the authorization of an optional alternative procedure to the in-person physical examination of documentation presented by new hires for the purpose of completing the Form I–9.  A copy of the new rule can be found here.  Employers may begin using the alternative procedure on August 1, 2023.

“Qualified Employers” Who Can Use the Remote Alternative Procedure

The remote alternative procedure is available only to employers that have enrolled in E-Verify with respect to all hiring sites in the United States, and are in compliance with all requirements of the E-Verify program.

Use of the alternative procedure is entirely optional.  Nothing in the alternative procedure prevents qualified employers from physically examining documents for the Form I–9.  However, once enrolled in E-Verify, employers are required to create an E-Verify case for all newly hired employees, whether or not the alternative procedure is used, at each hiring site that is enrolled in E-Verify.

Remote Alternative Procedure Requirements

Within three business days of an employee’s first day of employment, a qualified employer (or an authorized representative acting on such an employer’s behalf, such as a third-party vendor) who chooses to use the alternative procedure must complete all of the following steps:

  • Step 1:  Examine copies (front and back, if the document is two-sided) of the identity and employment authorization Form I–9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
  • Step 2:  Conduct a live video interaction with the individual presenting the documents to ensure that the documentation reasonably appears to be genuine and related to the individual.  The employee must first transmit a copy of the documents to the employer (per Step 1 above) and then present the same documents during the live video interaction;
  • Step 3:  Indicate on the Form I–9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
  • Step 4:  Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).

In the event of a Form I–9 audit, the employer must make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

If the employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site.  A qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.

Qualified employers must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination.  Nothing in the alternative procedure prevents an employer from physically examining documents when requested to do so by an employee.

Training Requirement

Employers who enroll in E-Verify and any users who manage and create E-Verify cases must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training.  The tutorial is free and accessible as part of the E-Verify enrollment process to any users who manage and create E-Verify cases.

For specific questions about the Form I-9 process, please reach out to an SMT employment law attorney.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | June 21, 2023

California COVID-19 Supplemental Paid Sick Leave Relief Grant Program Applications Are Now Available

The California Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program will award grants to “qualified small businesses and nonprofits” on a first-come, first-served basis to assist qualified small businesses and nonprofits that incurred costs in 2022 for COVID-19 Supplemental Paid Sick Leave (“SPSL”).

Eligibility Requirements

1.  Must be one of the following:

    • A “C” corporation, “S” corporation, cooperative, limited liability company, partnership, or limited partnership.
    • A registered 501(c)(3), 501(c)(6), or 501(c)(19).

2.  Began operating before June 1, 2021.

3.  Is currently active and operating.

4.  Had 26 to 49 employees between January 1, 2021, and December 31, 2022, and provides payroll data and an affidavit, signed under penalty of perjury, attesting to that fact.

    • For employers covered by Industrial Welfare Commission Order No. 16-2001 (Construction Industry) only, the number of employees shall be calculated as the number of full-time employees that have worked for the employer, without any break in employment, for the past 24 months

5.  Provided COVID-19 SPSL pursuant to the requirements of sections 248.6 and 248.7 of the California Labor Code.

6.  Provides organizing documents, including a 2020 or 2021 tax return or Form 990, and a copy of official filing with the Secretary of State or with the local municipality, as applicable, including, but not limited to, Articles of Incorporation, Certificate of Organization, Fictitious Name of Registration, or government-issued business license.

Use of Funds

Grant funds may only be used to reimburse the small business or nonprofit for COVID-19 SPSL provided to employees between January 1, 2022, and December 31, 2022.  Applicants must provide proof of employee payroll records that verify all COVID-19 SPSL provided by the applicant pursuant to the requirements of Labor Code sections 248.6 and 248.7 that match the amount of the grant request.

Apply Now

Grant funds are limited and are issued on a first-come, first-served basis.  Employers can find out more information and submit an application at www.caspsl.com.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | February 6, 2023

COVID-19 Prevention Non-Emergency Regulations Now In Effect

The Office of Administrative Law has finally approved the COVID-19 Prevention Non-Emergency Regulations, which will “permanently” replace the Emergency Temporary Standards (ETS).  The Prevention regulations are enforced by CAL/OSHA and contain a comprehensive list of COVID-19-related requirements for employers to follow.  The new regulations went into effect on February 3, 2023, and are set to expire two years later on February 3, 2025, except the recordkeeping requirements.  Those will remain in place through February 3, 2026.

Below are highlights of the major changes made by the Prevention regulations.

  • COVID-19 Prevention Plan:  Employers are no longer required to create and maintain a standalone COVID Prevention Plan or CPP.  Under the new regulations, employers can now address COVID-19 workplace measures in their Injury and Illness Prevention Program (IIPP) so long as it makes clear that COVID-19 is a workplace hazard and includes information regarding how to prevent the spread of COVID-19, employee training regarding COVID-19, and procedures for responding to COVID-19 cases at the workplace.  Employers who wish to keep this information in a separate document may do so long as all of the required information is included.
  • Close Contact Definition:  CAL/OSHA’s close contact definition now defers to the California Department of Public Health (CDPH) order, which focuses on the size of the workplace as described below:
    • For indoor spaces of 400,000 or fewer cubic feet per floor, close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, regardless of the use of face coverings.
    • For indoor spaces of greater than 400,000 cubic feet per floor, close contact is defined as being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, regardless of the use of face coverings.
    • Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces.
  • Infectious Period Definition:  The regulations also defer to the CDPH for the definition of infectious period.  Currently, the infectious period is defined as follows:
    • For symptomatic infected persons, 2 days before the infected person had any symptoms (symptom onset date is Day 0) through Day 10 (if choosing not to re-test) after symptoms first appeared and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
    • For asymptomatic infected persons, 2 days before the positive specimen collection date (collection date is Day 0) through Day 10 (if choosing not to re-test) after positive specimen collection date for their first positive COVID-19 test.
  • COVID Testing:  Employers must make COVID-19 testing available at no cost and during employees’ paid time, regardless of vaccination status to all employees of the employer who have had close contact in the workplace and who are not returned cases.
  • Face Coverings:  Employers are required to ensure employees wear face coverings when required by a CDPH regulation or order.  If an employee is exempt from a mandatory face covering requirement due to medical, disability, or mental health reasons, the employee must wear “an effective nonrestrictive alternative,” if possible.  The permanent standard no longer mandates any sort of testing for these employees if it is not possible for an exempt employee to wear a face covering.
  • Ventilation:  Employers are expected to be more proactive in reviewing the air ventilation systems in the workplace.  Under the Prevention regulations, employers must now develop, implement, and maintain effective methods to prevent transmission of COVID-19 including one or more of the following:
    • Maximize as much as possible the quantity of outside air provided, except when the United States Environmental Protection Agency (EPA) Air Quality Index is greater than 100 for any pollutant or if opening windows or maximizing outdoor air by other means would cause a hazard to employees, for instance from excessive heat or cold.
    • In indoor locations with mechanical ventilation, filter circulated air through filters at least as protective as Minimum Efficiency Reporting Value (MERV)-13, or the highest level of filtration efficiency compatible with the existing mechanical ventilation system.
    • Use High Efficiency Particulate Air (HEPA) filtration units in accordance with manufacturers’ recommendations in indoor areas occupied by employees for extended periods, where ventilation is inadequate to reduce the risk of COVID-19 transmission.
  • Outbreaks
    • The rules concerning outbreaks no longer apply once there have been one or fewer cases detected in an exposed group within a 14-day period (instead of no new cases in a 14-day period).
    • Employers experiencing an outbreak are now required to utilize HEPA units upon an outbreak whenever ventilation is inadequate to reduce transmission.
    • Multiple Outbreaks:  Employers are no longer required to notify the local public health department of a multiple outbreak (3 or more COVID-19 cases in a 14-day period).  Testing requirements have also relaxed.  Testing must be provided to exposed employees, but employers are no longer required to test exposed employees on a weekly basis.
    • Major Outbreaks:  Employers must report all major outbreaks (20 or more COVID-19 cases in a 30-day period) to CAL/OSHA.  Testing, face mask rules, and social distancing requirements for major outbreaks remain in place.
  • Reporting and Recordkeeping:  Employers must keep a record of COVID-19 cases for 2 years but are no longer required to keep records of close contacts.

Despite rumors to the contrary, exclusion pay did not get included among the new requirements.  This means that employers are no longer expected to maintain an employee’s pay if the employee is excluded from work because COVID-19 was contracted in the workplace.  Employees will now need to use other paid time off or apply for short-term disability or worker’s compensation benefits, as applicable, if they are seeking compensation during an exclusion period.

CAL/OSHA has developed detailed FAQs and an updated model program for your CPP or IIPP that can be found here.

Throughout the pandemic, we have continually monitored the changes in the law and the CAL/OSHA regulations to provide our clients with the most up-to-date information.  Part of that effort has included providing our clients with a COVID-19 Protocol Packet to help them navigate the ever-changing legal requirements related to COVID-19 and understand how the changes impact their business.  If we previously prepared a COVID-19 Protocol Packet for your business, please contact us about an update.  If you are interested in having us prepare a Protocol Packet for your business, please contact us for assistance.

For specific questions about the Prevention regulations or how to handle COVID-19 in your workplace, please reach out to an SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 11, 2023

In this month’s Employment Law Bulletin we bring to you our 2023 Employment Law Update Action Items from the Employment Law Update seminar held via Zoom earlier today.  Employers can use this handy list to help ensure their organization is in compliance with new laws that took effect in January 2023.  Please reach out to an SMT employment attorney if you have questions.  We are here to help.

2023 Employment Law Update Action Items

2023 CA Labor Law Poster

  • Purchase, fill in and post

2023 CA Minimum Wage Increase

  • Review hourly pay rates and raise if necessary
  • Review exempt EE salaries and raise if necessary
  • Review commissioned EE compensation to determine if they still meet the threshold
  • Analyze any formula based on new MW

2023 City Minimum Wage Ordinances

  • If you have EEs who work any hours in cities with MW ordinances, check to see if the EEs fit the ordinance definition of EE; if so, the MW ordinance applies to them
  • Review hourly pay rates and raise if necessary
  • Notify EEs on new local MW
  • Print and post the required local city ordinance MW posters

Overtime for Agricultural Workers Act of 2016

  • ERs with > 25 EEs:  verify you are applying the 8/day, 40/week OT standard, and 12/day DT standard
  • ERs with 1-25 EEs: implement new 9/day, 50/week OT standard now and plan for future changes

Timekeeping (Non-exempt EEs Only) – Camp v. Home Depot U.S.A., Inc.

  • Review timekeeping systems and practices to identify if any rounding policies are used
  • Consult with SMT to discuss eliminating rounding rules without raising a red flag for EEs

Rest/Meal Premiums are Wages (Non-exempt EEs only)

  • Itemize break premium pay separately on pay stubs:
    • Identify as meal break or rest break premium
    • Number of hours of premiums being paid
    • Premium rate of pay (must be paid at RROP)
  • Check in with your payroll company to ensure pay stub compliance
  • Ensure that all premium pay is paid with final pay at separation from employment

Pay Data Reporting (SB 1162)

Pay Scale Disclosures (SB 1162)

  • Develop pay scales for all positions
  • Train HR/supervisors/hiring personnel regarding disclosure obligations to current EEs and applicants
  • Review and update all job postings to include pay scales
  • Ensure 3rd parties include the pay scales you provide in the job posting
  • Create and maintain job title and wage rate history for all EEs

2023 IRS Mileage Rate

  • Ensure EEs using personal vehicles for business are being properly reimbursed for business mileage
  • Inform your payroll/finance department of the mileage rate change so EEs are properly reimbursed

I-9 Form

  • Check the U.S. Citizenship and Immigration Services website monthly for the updated version www.uscis.gov/i-9

DFEH Gets a New Name

  • Make sure Employee Handbooks and forms accurately reflect the new name

Protection for Reproductive Health Decisionmaking

  • Review Employee Handbooks, policies, and training materials to ensure the new protected class is addressed

2023 Sexual Harassment Fact Sheet

  • Use CRD fact sheet or develop own version and distribute to all EEs
  • Implement training for EEs and supervisors

Extending Sexual Assault Statute of Limitations

  • Cross fingers and hope that if a claim wasn’t already filed, it won’t be

Prohibition Against Adverse Actions During Emergency Conditions

  • Train supervisors on requirements of new law
  • Review policies for compliance
  • If you think you might be exempt, check the bill or contact us

Bereavement Leave

  • ERs who already provide bereavement leave should review their leave policy to ensure it provides for a minimum of 5 days of leave and that the policy does not contain a requirement that the days off be taken consecutively; allow leave to be taken over 3 months
  • ERs who do not already provide bereavement leave should revise their Employee Handbooks and policies to add a bereavement leave policy

CA Family Right Acts & Paid Sick Leave: Designated Person

  • Revise PSL and CFRA policies
  • Ensure management and HR staff are trained on the eligibility requirements and differences in what it means to be a Designated Person for CFRA and PSL
  • Revise time off requests and leave of absence forms to provide a mechanism for EEs to identify a Designated Person

Paid Family Leave (PFL) Small Business Grant Money  

  • Applications will be accepted through 5/31/24 or until the funding is exhausted so it’s important to get your application in as soon as you have an EE using PFL benefits

Arbitration Agreements – Viking River Cruises, Inc. v. Moriana

  • If you have an arbitration agreement, consult with SMT about revisions under Viking River
  • If you don’t have an arbitration agreement, consult with SMT about the pros and cons to determine if one is right for your business

Employee Privacy Rights

  • Determine if your business is covered by the law.  If so:
    • Determine the type of information you collect and where and how long it is kept
    • Develop the required notice
    • Adopt security measures for protecting personal information
    • Identify the person who will be responsible for responding to requests
    • Develop procedures for responding to requests
    • Train personnel

Responsible Beverage Service Training for Alcohol Servers

  • Ensure all current EEs have completed the required training
  • Ensure all new EEs complete the required training w/in 60 days of employment

Off-Duty Cannabis Use (AB 2188) (by 1/1/2024)

  • Update drug and alcohol testing policies and procedures
  • Implement fitness for duty policy
  • Train managers/supervisors

Cal-Savers (SB 1126)

  • If you do not offer a retirement plan and you have 5 or more EEs
    • Register with CalSavers
    • Issue required notices to EEs
    • Facilitate EE deductions
  • If you do not offer a retirement plan and you have 1-4 EEs prepare for compliance as of 1/1/2025

COVID-19 Notification Requirements 

  • Draft a posting document now in order to comply with the one day turnaround or continue to issue written notices

CAL/OSHA Non-Emergency Prevention Standard

  • Ensure training and compliance with new standard

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | December 20, 2022

CAL/OSHA Closes In On Finalizing COVID-19 Non-Emergency Prevention Regulations

On December 15, 2022 the California OSHA Board voted to adopt the Non-Emergency COVID-19 Prevention regulations (previously known as the Emergency Temporary Standards or ETS).  The Prevention regulations will take effect once they are approved by the Office of Administrative Law (OAL), which we expect will occur in January 2023 (the exact date is unknown at this time).  Once approved, they will remain in effect for two years, except for the recordkeeping obligations, which remain in effect for three years.

The Prevention regulations mirror the old ETS in many ways, but there are some significant changes to the employer obligations that are important to know.  A fact sheet outlining the requirements of the Prevention regulations has been posted on the Department of Industrial Relations website and can be found here.  The Department is also working on a list of Frequently Asked Questions to assist employers in understanding their obligations under the Prevention regulations.  One item of note is that the Prevention regulations no longer include a requirement for employers to pay employees who are excluded from work because of work-related COVID-19 reasons.  However, it appears this may change in January after the Board reviews a proposal that is currently being drafted in support of the requirement.

We are closely following the developments of the Prevention regulations in order to provide our clients with the most up-to-date advice.  Once they are final, we will also update our COVID-19 protocol and notification packet.  If you have questions about the Prevention regulations, reach out to an SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | November 3, 2022

Leave to Grieve Required in 2023

Beginning January 1, 2023, businesses with five or more employees will be required to provide up to five days of unpaid bereavement leave when an employee suffers a loss of a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  Eligible employees must have worked 30 days prior to the request to qualify for the leave.  The leave can be taken all at once or over time but, if the employee chooses to split up the days off, the leave must conclude within three months of the family member’s death.  The new law does not limit the employee to taking only five days of bereavement leave per year, but rather allows for five days of leave per eligible family member’s death.  Although the leave is unpaid, employees must be allowed to use any accrued and available vacation, personal leave, sick leave, or other available compensatory time on the books.

The new law prohibits employers from retaliating against an employee who requests or takes bereavement leave and prohibits discrimination or interference with the right to take bereavement leave.  On that note, although the law allows employers to ask for documentation supporting an employee’s request for leave, employers may want to consult counsel before asking for it to avoid discrimination, retaliation or interference with leave claims.

Employers who already provide bereavement leave, including those with collective bargaining agreements, should review their leave policy to ensure it provides for a minimum of five days of leave and that the policy does not contain a requirement that the days off be taken consecutively.

If you have questions or need help preparing or revising your bereavement leave policy, reach out to an SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | October 3, 2022

Governor Newsom Extends COVID Supplemental Paid Sick Leave (Again) For Employers with More than 25 Employees

The California COVID-19 Supplemental Paid Sick Leave (SPSL) law, originally set to expire on September 30, 2022, has been extended through December 31, 2022.  While the law still only applies to employers with more than 25 employees and does not add any additional SPSL entitlement, it gives employees three more months to use the benefits conferred by the law in early 2022 if they are unable to work (on site or remotely) for specific reasons related to COVID-19.  For a complete discussion of the SPSL hours entitlement and conditions for use, see our February 10, 2022 Employment Law Bulletin.

The new law has two new features.  First, it allows employers to require a COVID-positive employee who tested positive five days after their initial positive test to submit to a second diagnostic test within no less than 24 hours, so long as the employer provides both tests at no cost to the employee.  If the employee refuses to test a second time, the employer may stop paying SPSL benefits.

Second, the law establishes a grant program to assist “qualified small businesses or nonprofits” that are incurring SPSL costs.  Grant recipients may exclude grant allocations from their gross income for state income tax purposes for tax years beginning 2021 through calendar year 2029.  “Qualified small businesses and nonprofits” generally include corporations, limited liability companies, partnerships, limited partnerships and registered nonprofits that provided SPSL during calendar year 2022, so long as they began operating before June 1, 2021 and have 26 to 49 employees.  Grants are not available to sole proprietorships or employers with more than 49 employees.

Please contact an SMT employment law attorney if you have questions about your SPSL obligations or if you need assistance with any other employment law needs.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | September 22, 2022

New Law Protects Employees’ Off Duty Marijuana Use

Effective January 1, 2024 (yes 2024), it will be unlawful for California employers to discriminate against an employee in hiring, termination, and other terms and conditions of employment based on (1) the employee’s off-the-job use of cannabis; and (2) drug test results that measure the nonpsychoactive cannabis metabolites in hair, blood, urine or other bodily fluids.

The new law’s protections address the limitations of traditional drug tests that don’t distinguish between unmetabolized tetrahydrocannabinol (THC) levels that can indicate impairment and cause psychoactive effects, from metabolized THC that is stored in the body as a nonpsychoactive cannabis metabolite long after cannabis use.  Currently, most cannabis tests show only the presence of the nonpsychoactive cannabis metabolite.

The law permits employers to act upon positive THC drug tests only if their actions are based on a scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.  We expect to see advancements in such tests over the next year, which may be why the law is not effective until January 2024.

Even after the law becomes effective, employers may still discipline employees for possessing, being impaired by, or using cannabis on the job, however, such use cannot be proven by a drug screening that screens for nonpsychoactive cannabis metabolites.

The new law does not apply to:

  • employees in the building and construction trades;
  • applicants and employees in positions requiring a federal background investigation or clearance; or
  • applicants or employees who are required by state or federal law to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

While the law does not become effective until January 1, 2024, it’s never too early to contact an SMT employment law attorney to discuss updating your workplace drug and alcohol policies and testing requirements.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | August 3, 2022

Minimum Wage Increase Effective January 1, 2023 for ALL Employers

On July 27, 2022, the California Department of Finance issued a letter certifying a 3.5% increase to the state’s minimum wage bringing it to $15.50/hour, effective January 1, 2023.  Unlike in prior years, there will not be a lower minimum wage rate for small employers with 25 or fewer employees.  Instead, the minimum wage will be the same for all employers regardless of size.  This means a $1.50 increase for small employers who had expected a jump from the current rate of $14/hour to $15/hour in 2023, and an unexpected .50 cent increase for large employers (26 or more employees).

In addition, because the exempt salary threshold is tied to the minimum wage rate, it will also be increasing.  For 2023, employers, regardless of size, will be required to pay a minimum salary of $64,480 in order to continue to classify an employee as exempt.  For small employers, this means a significant increase in pay for those currently paying their exempt employees the minimum salary of $58,240.  Large employers paying the minimum salary will also have to implement an increase from the current threshold of $62,400.

It is important to remember that employers must meet both the salary and duties requirements in order to classify an employee as exempt.  Failing to pay the minimum salary can destroy the exemption and lead to misclassification claims even if the employee spends 50% or more of their time performing exempt tasks.  Misclassification claims often involve serious exposure for unpaid overtime and meal and rest break penalties, making audits of your exempt employees’ salaries and job duties a priority for your business.

According to the Department of Finance, the rate increase is intended to help curb the impact of inflation.  Even so, many employers will see the rate increase as a significant challenge.  If you have questions about the rate increase or the consequences of misclassifying an employee as exempt, please reach out to a SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | June 30, 2022

IRS Increases Standard Mileage Rate for Business Travel

Effective July 1, 2022, the standard mileage rate for operating an automobile for business travel will be 62.5 cents per mile, up 4 cents from the rate effective at the start of the year.  This rate will be in effect for the final six months of 2022.  Employers use the standard mileage rate as a safe harbor rate to reimburse employees who drive their personal cars for business purposes for their employers.

City of San Francisco and Other City Minimum Wage Increases on July 1, 2022

On July 1, 2022, San Francisco’s minimum wage increases to $16.99, up from $16.32.  The San Francisco Minimum Wage Ordinance applies to all employees who work at least two hours during any given week in the City of San Francisco, regardless of their employer’s location.  More information can be found at www.sfgov.org.

Other cities with July 1, 2022 minimum wage increases include Emeryville ($17.68), the City of Los Angeles ($16.04), the County of Los Angeles ($15.96) and Pasadena ($16.11).

Responsible Beverage Service Training Required for Alcohol Servers by August 31, 2022

Beginning July 1, 2022, ABC licensees with an ABC On-Premises License will be required to ensure alcohol servers and managers of alcohol servers receive training from an ABC-approved Responsible Beverage Service Provider within 60 days from the first date of employment.  The training requirement applies to employees hired before and after July 1, 2022, and must be completed by August 31, 2022.  The requirement includes completing a training program and passing an exam.  The law is designed to teach alcohol servers to responsibly serve alcoholic beverages and mitigate alcohol-related harm in California.  More information can be found at www.abc.ca.gov.

Please contact an SMT employment lawyer if you have questions about these new laws or if you need assistance with any employment law issues.  We are here to help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown