Employment Law Bulletin | June 12, 2024

June 1 Deadline for Compliance with New Health Care Worker Minimum Wage Law Extended to July 1, 2024

In our November 13, 2023 Employment Law Bulletin, we reported on the new minimum wage requirements applicable to certain health care workers starting June 1, 2024.  On May 31, Governor Newsom signed a bill extending the effective date of the new law by one month.  The new minimum wage requirements will now be effective July 1, 2024, and the annual increases will take effect on July 1 of each year, rather than June 1.

Please contact an SMT Employment Law attorney if you have questions about this new law.

Reminder:  July 1 Deadline for Workplace Violence Prevention Plan Implementation and Training

The deadline for most California employers to prepare and implement a workplace violence prevention plan and training is July 1, 2024.  Please see our prior Employment Law Bulletins for more information:

Please contact an SMT Employment Law attorney if you have questions about drafting or implementing your workplace violence prevention plan.

Lisa Ann Hilario

¿No hablas español?

SMT 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 | March 19, 2024

Workplace Violence Prevention Plan Template Is Here!

In our November 7, 2023 Employment Law Bulletin, we reported on the passing of California Senate Bill 553 and its comprehensive requirements.  In a nutshell, SB 553 requires most California employers to establish, implement, and maintain an effective, written Workplace Violence Prevention Plan (WVPP) by July 1, 2024.  As a reminder, these requirements do not apply to the following:

  • healthcare facilities already covered by California’s existing workplace violence prevention standard for healthcare;
  • employees teleworking from a location of their own choice that is not under the employer’s control;
  • places of employment where there are fewer than 10 employees working at the place at any given time and that are not accessible to the public;
  • facilities operated by the Department of Corrections and Rehabilitation; and
  • certain law enforcement agencies.

Because the new law requires covered employers to include an extensive amount of information in their WVPP and because Cal/OSHA had already begun to develop a WVPP template back in 2017, we hoped the agency would come to the rescue with an updated template to help employers achieve compliance with the new requirements.  We are excited to announce that Cal/OSHA has risen to the occasion with the WVPP template we have been waiting for.  You can access the new WVPP template (for non-healthcare settings) and very helpful Cal/OSHA fact sheets for healthcare, agricultural and general industry employers here.

If you have questions about drafting or implementing your Workplace Violence Prevention Plan, please contact an SMT Employment Law attorney.  You can also access any of our past Employment Law Bulletins on our website.

Kari J. Brown

¿No hablas español?

SMT 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 12, 2024

In this month’s Employment Law Bulletin, we bring to you our 2024 Employment Law Update Action Items from the Employment Law Update seminar held via Zoom on January 10, 2024.  Employers can use this handy list to help ensure their organization is in compliance with new laws that took effect in January 2024.  Please reach out to an SMT employment attorney if you have questions.  We are here to help.

SMT 2024 Employment Law Update Action Items 

2024 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
  • Post the current CA MW poster (typically included in state/fed Labor Law poster)

CA Health Care Worker Minimum Wage

  • Review hourly pay rates and raise if necessary
  • Review exempt EE salaries and raise if necessary
  • Apply for waiver program (if desired)

CA Fast Food Industry Minimum Wage

  • Increase MW if the law applies to your EEs

2024 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 of 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 8.5/day, 45/week OT standard now and plan for future changes

Final Payment of Wages

  • Pay final wages, including accrued PTO/vacation/floating holidays on the layoff date if there is no specific return date within the normal pay period

Food Handler Card Training Time and Expense Reimbursement

  • Ensure EEs complete training and test on paid work time
  • Pay for or reimburse costs associated with obtaining a food handler card
  • Do not condition employment on the applicant or EE having an existing food handler card

Employee Expense Reimbursement

  • Evaluate:
    • business practices/procedures requiring the use of EE’s personal devices
    • expenses associated with remote/hybrid work arrangements
    • whether business mileage is being reimbursed
  • Speak with managers/supervisors to determine if they are requiring EEs to use personal devices or incur business-related expenses without your knowledge
  • Reimburse EEs for all business-related expenses

2024 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

  • Ensure you are using the current I-9 form

Remote I-9 Form Document Review Process

Updated Notice to Employee

  • Download updated form: www.dir.ca.gov/dlse/lc_2810.5_notice.pdf
  • Complete and issue new Notice to all new non-exempt EE hires and current non-exempt EEs when information on the Notice changes
  • If your sick leave benefit changed as a result of the 1/1/2024 sick leave law changes, a new Notice is required for non-exempt EEs to inform them of this change

Paid Sick Leave Law Changes

  • Update your PSL and PTO policies
  • Update payroll system settings
  • Issue updated Notice to Employee to all non-exempt EEs to inform them of the change in the PSL benefit

Reproductive Loss Event Leave

  • Update your leave of absence policies
  • Train supervisors/managers about this new leave

Off-Duty Cannabis Use

  • Update drug and alcohol testing policies and procedures
  • Confirm with your drug testing facility that they have the appropriate testing available to screen for only for psychoactive metabolites (unless an exception applies)
  • If your drug tests do test for nonpsychoactive metabolites, do not use cannabis results in making hiring/employment decisions (unless an exception applies)
  • Implement fitness for duty policy
  • Train managers/supervisors

Contracts in Restraint of Trade

  • Review employment policies, contracts and agreements to determine whether they include unlawful restrictive covenants
  • Assess whether any agreements or contractual provisions require notice and/or modification
  • Prepare notices if required; revise or remove unlawful agreements and policies

NLRB Ruling Regarding Confidentiality and Non-Disparagement

  • Policies and rules should be reviewed with the new standard in mind and potentially revised
  • Be careful in drafting confidentiality requirements related to an investigation and the admonitions delivered at the conclusion of the investigation
  • Consider revising Employee Handbook policies

Wage Theft

  • Train supervisors to handle complaints of pay equity and payment of wages appropriately
  • Ensure payroll staff and agencies are computing and paying wages correctly and on time
  • Refrain from vigilante justice in deducting amounts due from EE paychecks
  • Review termination decisions in light of wage complaint

Workplace Violence Restraining Orders (WVRO): Harassment

  • Evaluate workplace violence incidents for potential WVRO filing
  • Discuss WVRO with counsel before proceeding (may be required to have an attorney to proceed)
  • Ensure that target EE of unwanted conduct is given the option to decline being named in the petition

Workplace Violence Prevention Plan

  • Check with your broker to see if they have a template for a Workplace Violence Prevention Plan
  • Watch the Cal/OSHA website for a template
  • Ensure compliance by July 1, 2024

Right to Recall – Reminder

  • Prepare list of layoffs that occurred on or after 3/4/2020 and review the reasons for the layoff
  • Determine whether the layoff was due to COVID and if recall responsibilities exist or if there is sufficient evidence to rebut the presumption
  • Ensure written offers and notices are delivered as required

Changes to the Fair Chance Act

  • The CRD has created six helpful forms to assist ERs in complying with the regulation’s requirements.  The forms include an Ad and App Compliance Statement, Conditional Job Offer Letter, Individualized Assessment Form, Preliminary Notice to Revoke Job Offer, Individualized Reassessment Form and Final Notice to Revoke Job Offer.  All forms can be found on the CRD website
  • Ensure written conditional offers are made before background checks are done and/or criminal history is taken into consideration
  • Document your analysis to support decision to rescind an offer
  • Be sure to adhere to deadlines and notice requirements
  • For more information, see: https://www.smlaw.com/employment-law-bulletin-august-31-2023/

Human Trafficking Notice Requirement

COVID-19 Notification Requirements 

  • Continue to manage positive test notifications with investigation, notices to close contacts, and exclusion of EEs as needed to keep the workplace safe
  • Offer testing at no cost to close contacts
  • Consider masking if circumstances require
  • Although the presumption has expired, continue to document any information received from EEs indicating that COVID was contracted outside the workplace

Construction Sites – Single User Toilets

  • The directive is unclear as to whether one toilet is required for female and non-binary EEs or one for each (which seems to make more sense)
  • Gender-neutral facility will not likely be sufficient
  • ERs could proactively designate a toilet facility for female and non-binary EEs before the law takes effect but may be best to wait for rules to develop

Hazardous Material: Stationary Sources

  • Ensure compliance if this law applies to your business

Agricultural Labor Relations

Consult with an attorney regarding any union election questions and procedures

Lisa Ann Hilario and Kari J. Brown

¿No hablas español?

SMT 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 12, 2023

Deadline Approaching for Employers to Provide Employees with Notice of Voided Non-Competes 

Assembly Bill (AB) 1076, signed into law earlier this year, makes any non-compete clause, no matter how narrowly tailored, void as a matter of statute unless certain limited statutory exceptions are met.**  This component of the bill isn’t “new” law in the traditional sense.  Non-compete clauses have been void under Business and Professions Code Section 16600 for decades and the 2008 California Supreme Court decision of Edwards v. Arthur Andersen LLP made clear that California courts were also willing to enforce the state’s long-standing disdain for non-compete agreements.  AB 1076 now comes forth to marry the Code with the caselaw by amending Business and Professions Code Section 16600 so that it will read as follows (new language is indicated in bold):

(a) Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

(b) (1) This section shall be read broadly, in accordance with Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, to void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored, that does not satisfy an exception in this chapter.

(2) This subdivision does not constitute a change in, but is declaratory of, existing law.

(c) This section shall not be limited to contracts where the person being restrained from engaging in a lawful profession, trade, or business is a party to the contract.

** Statutory exceptions to Section 16600 include restrictive covenants in the sale or dissolution of corporations, partnerships, and limited liability corporations.  See Cal. Bus. & Prof. Code §§ 16601, 16602, 16602.5.

Importantly, the statute requires a broad interpretation of non-compete agreements and also applies to agreements where the restrained party was not a party to the contract.  This means that other restrictive agreements, such as non-solicitation of employees, customers and vendors, and agreements between businesses prohibiting the solicitation of each other’s employees, are likely also void under the new law.

AB 1076 goes even further though by creating a new statute, Business and Professions Code Section 16600.1, which makes it unlawful for an employer to include a noncompete clause in an employment contract or to require an employee to enter a noncompete agreement that does not satisfy one of the statutory exceptions.

Section 16600.1 also requires employers to notify current and former employees (those employed on or after January 1, 2022) who were subject to a non-compete that the unlawful provision or agreement is void.   The notice must be in an individualized writing to the employee or former employee and delivered to their last known address and email address. The deadline for this notice is February 14, 2024.

We recommend an audit of all employment policies, contracts and agreements to identify non-compete or non-solicitation clauses as well as a review of business contracts to ensure any non-compete provisions are within the parameters of the law.

As always, if you require assistance or have questions regarding compliance with this or other employment-related issues, please reach out to an SMT employment law attorney.

Kari J. Brown

¿No hablas español?

SMT 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 13, 2023

New Minimum Wage Schedules Apply to Certain Health Care Workers Starting June 1, 2024 (SB 525)

While the California base minimum wage increases to $16/hour effective January 1, 2024, a new law effective June 1, 2024, establishes five separate minimum wage schedules for “covered health care employees,” depending on the nature of their employer.  The schedules vary according to the type of employer and the base minimum wage increases over time starting June 1, 2024, until it reaches $25/hour.  The new law also requires an increase in the minimum salary an exempt health care worker must be paid to be classified as exempt (not eligible for overtime).

Covered Employers
“Covered health care facilities” which must comply with the new law are listed below.  Each facility type listed below is defined in SB525.

  • facilities or other work sites that are part of an integrated health care delivery system;
  • licensed general acute care hospitals;
  • licensed acute psychiatric hospitals;
  • special hospitals;
  • licensed skilled nursing facilities, if owned, operated, or controlled by a hospital or integrated health care delivery system or health care system;
  • patients’ homes when health care services are delivered by an entity owned or operated by a general acute care hospital or acute psychiatric hospital;
  • licensed home health agencies;
  • clinics, including a specialty care clinic, dialysis clinic, psychology clinic, outpatient clinic, clinic operated or affiliated with any institution teaching a recognized healing art, and/or non-profit clinic that conducts medical research and health education and provides health care to its patients through a group of 40 or more physicians and surgeons, who are independent contractors representing not less than 10 board-certified specialties, and not less than two-thirds of whom practice on a full-time basis at the clinic;
  • licensed residential care facilities for the elderly, if affiliated with an acute care provider or owned, operated, or controlled by a general acute care hospital, acute psychiatric hospital, or the parent entity of a general acute care hospital or acute psychiatric hospital;
  • psychiatric health facilities;
  • mental health rehabilitation centers;
  • community clinics, intermittent clinics, or publicly operated clinics;
  • rural health clinics;
  • urgent care clinics;
  • ambulatory surgical centers;
  • physician groups;
  • county correctional facilities that provide health care services; and
  • county mental health facilities.

Covered Employees
“Covered health care employees” include the following employees of a “covered health care facility” who provide patient care, health care services and services supporting the provision of health care:

  • nurses;
  • physicians, medical residents, interns and fellows;
  • caregivers;
  • patient care technicians;
  • janitors, housekeeping and laundry staff;
  • groundskeepers;
  • guards;
  • business office and clerical workers;
  • non-managerial administrative workers;
  • food service workers;
  • gift shop workers;
  • technical and ancillary service workers;
  • medical coding and billing personnel;
  • schedulers and call center workers; and
  • warehouse workers.

Minimum Wage Schedules
The first minimum wage increase occurs on June 1, 2024, with scheduled increases to occur over subsequent years until it reaches $25/hour.  The minimum wage amounts and frequency of increases vary according to the type of covered health care facility.  The wage schedules are shown below.

Increase to Minimum Salary for Exempt Health Care Workers
The new law also increases the minimum salary for exempt (not eligible for overtime) health care workers.  Beginning June 1, 2024, in order to qualify as exempt, covered health care employees who are paid on a salary basis must earn a salary equivalent to at least 150% of the health care worker minimum wage (see wage schedules below) or 200% of the California minimum wage for a full-time employee ($133,120/year), whichever is greater.  Full-time employment is considered 2,080 hours per year and the minimum salary may not be pro-rated for part-time employment.  The exempt health care worker minimum wage is in contrast to the minimum salary for exempt employees in other industries which must be at least twice California’s $16/hour minimum wage for a full-time employee – $66,560 for 2024.

Wage Schedules

Covered Health Care Facility Timing Minimum Hourly Wage for Non-Exempt Employees Minimum Annual Salary for Exempt Employees
Large Employers and Integrated Health Systems June 1, 2024 to June 1, 2025

June 1, 2025 to June 1, 2026

June 1, 2026, until adjusted

$23

$24

$25

$71,760

$74,880

$78.000

Hospitals June 1, 2024 to May 31, 2033

June 1, 2033, until adjusted

$18/hour with 3.5% increases annually

$25

Use CA minimum exempt salary through 2028; $66,643.20 starting in 2029

$78,000 (unless regular CA minimum wage is increased)

Clinics June 1, 2024 to May 31, 2026

June 1, 2026 to May 31, 2027

June 1, 2027, until adjusted

$21

$22

$25

$65,520

$68,640

$78,000

All Other Health Care Facilities June 1, 2024 to May 31, 2026

June 1, 2026 to May 31, 2028

June 1, 2028 until adjusted

$21

$23

$25

$65,520

$71,760

$78,000

Waiver Program to be Developed
The law requires the California Division of Labor Standards Enforcement and the Department of Health Services to develop a waiver program by March 1, 2024, to allow covered health facilities to apply for and receive a temporary pause or an alternative phase-in schedule of the minimum wage requirements.

Please reach out to an SMT employment attorney if you have questions or need assistance interpreting this new law.

Lisa Ann Hilario

¿No hablas español?

SMT 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 7, 2023

Workplace Violence Prevention Plans Required by July 1, 2024
(Senate Bill 553)

California employers are required to establish, implement and maintain an effective workplace violence prevention plan by July 1, 2024.  The plan may be added to the employer’s existing Injury and Illness Prevention Plan or maintained as a separate document.

Covered Employers
All California employers are covered by the new law with the following exceptions:

  • healthcare facilities already covered by California’s existing workplace violence prevention standard for healthcare;
  • employees teleworking from a location of their own choice that is not under the employer’s control;
  • places of employment where there are fewer than 10 employees working at the place at any given time and that are not accessible to the public;
  • facilities operated by the Department of Corrections and Rehabilitation; and
  • certain law enforcement agencies.

Plan Requirements
Workplace violence prevention plans must be written, available and easily accessible to all employees and must include the following requirements listed in new Labor Code section 6401.9:

  • the names or job titles of the persons responsible for implementing the plan;
  • effective procedures to obtain the active involvement of employees in developing and implementing the plan, including, but not limited to, through their participation in identifying, evaluating, and correcting workplace violence hazards, in designing and implementing training, and in reporting and investigating workplace violence incidents;
  • methods the employer will use to coordinate implementation of the plan with other employers, when applicable;
  • effective procedures for the employer to accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who makes such a report;
  • effective procedures to ensure that supervisory and nonsupervisory employees comply with the plan;
  • effective procedures to communicate with employees regarding workplace violence matters, including, how to report a violent incident or threat, how employee concerns will be investigated and how employees will be informed of the results and any corrective actions taken;
  • effective procedures to respond to actual or potential workplace violence emergencies, including, effective means to alert employees of workplace violence emergencies, evacuation or sheltering plans that are appropriate and feasible for the worksite, and how to obtain help from staff assigned to respond to workplace violence emergencies and law enforcement;
  • procedures to develop and provide effective workplace violence prevention training;
  • procedures to identify, evaluate and correct workplace violence hazards; and
  • procedures for post-incident response and investigation.

Training Requirements
Employers must provide employee training about the workplace violence prevention plan when the plan is first established, annually thereafter, and when a new workplace violence hazard is identified.

Recordkeeping Requirements
Employers are required to create and maintain the following records for a minimum of five years and produce them to Cal/OSHA upon request:

  • records of workplace violence hazard identification, evaluation and correction;
  • a violent incident log for every workplace violence incident;
  • records of workplace violence incident investigations; and
  • training records.

Changes to Workplace Violence Restraining Order Laws Take Effect January 1, 2025

A workplace violence restraining order (WVRO) is a court order obtained by an employer to protect an employee who has suffered unlawful violence or a threat of unlawful violence that can reasonably be construed to be carried out in the workplace.  The following new changes to the WVRO laws take effect on January 1, 2025.

  • Employers, in addition to the affected employee, may seek a WVRO if an employee has suffered workplace harassment.  “Harassment” is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.  The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”
  • Collective bargaining representatives, in addition to the employer, may seek a WVRO on behalf of the employee provided the representative serves as the “collective bargaining representative for that employee in employment or labor matters at the employee’s workplace.”
  • Before filing a petition for WVRO, the person seeking the WVRO must provide the employee who has suffered harassment, unlawful violence, or a credible threat of unlawful violence with the opportunity to decline to be named in the WVRO.  If the employee requests not to be named in the WVRO, the employer or collective bargaining representative may seek the WVRO on behalf of other employees at the workplace.

Lisa Ann Hilario

¿No hablas español?

SMT 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, 2023

New California Law Requires Employers of Five or More Employees To Provide Reproductive Loss Leave

Effective January 1, 2024, employers of five or more employees must grant eligible California employees up to five days of leave following a “reproductive loss event.”  Eligible employees include employees who have:

  • worked for the employer for 30 or more days before the leave begins; and
  • suffered a:
    • failed adoption;
    • failed surrogacy;
    • miscarriage;
    • stillbirth;
    • unsuccessful round of intrauterine insemination; or
    • unsuccessful round of artificial insemination or embryo transfer procedure.

The leave is available to either parent and must be completed within three months of the “reproductive loss event,” but need not be taken on consecutive days.  If the employee takes pregnancy disability leave or family medical leave prior to or immediately following the reproductive loss event, the leave must be completed within three months of the end of that other leave.  If the employee suffers more than one reproductive loss event within a 12-month period, the employer may limit the total amount of reproductive loss leave time to 20 days within a 12-month period.

While the leave is not paid by the employer, the employee must be permitted to use any accrued vacation, personal leave, sick leave, or compensatory time off that is otherwise available to the employee.

The law prohibits employers from interfering with or denying leave, and retaliating against employees who take reproductive loss leave.

Finally, the law requires employers to maintain the confidentiality of the employee requesting reproductive loss leave.  Information provided to the employer must be kept confidential except from internal personnel or counsel, as necessary, or as required by law.

Contact an SMT employment attorney about adding this new leave of absence to your Employee Handbook or leave of absence policy.

Lisa Ann Hilario

¿No hablas español?

SMT 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 17, 2023

Changes to California’s Paid Sick Leave Law Require Employers to Offer More Paid Sick Leave and Increase Accrual, Usage, and Carryover Requirements.  Changes Also Affect Employers Who Offer PTO in Lieu of Paid Sick Leave (Senate Bill 616)

Effective January 1, 2024, amendments to California’s paid sick leave law increase the number of paid sick leave days employers must offer and increase sick leave usage and carry over requirements.

Increase in Paid Sick Leave Days and Total Accrual

  • Employees who receive paid sick leave in a lump sum up front each year must receive a minimum of 40 hours or 5 days, whichever is greater, per year (up from 24 hours or 3 days).
  • Employers who allow employees to earn paid sick leave at a rate of 1 hour for every 30 hours worked from the beginning of employment may cap the employee’s total accrual at 80 hours or 10 days, whichever is greater, per year (up from 48 hours or 6 days)
  • Employers who use a different accrual method than providing 1 hour for every 30 hours worked must permit accrual on a regular basis and the employee must earn:
    • no less than 24 hours or 3 days (whichever is greater) by the 120th calendar day of employment, or each calendar year, or in each 12-month period (pre-2024 requirement); and
    • no less than 40 hours or 5 days (whichever is greater) by the 200th calendar day of employment, or each calendar year, or in each 12-month period (new 2024 requirement).
  • Employers who provide 24 hours or 3 days (whichever is greater) of paid sick leave that is available to use by the completion of the employee’s 120th calendar day of employment (pre-2024 requirement), must now provide an additional 16 hours or 2 days (whichever is greater) of paid sick leave by the employee’s 200th day of employment, for a total of 40 hours/5 days per year (new 2024 requirement).

Cap On Use of Paid Sick Leave

Employers may limit their employees’ use of paid sick leave to 40 hours or 5 days per year, whichever is greater (up from 24 hours or 3 days per year).

Carry Over of Unused Paid Sick Leave

Employees who accrue paid sick leave over time must be permitted to carry over 40 hours or 5 days (whichever is greater) of paid sick leave from one year to the next (up from 24 hours or 3 days).  Employees who receive paid sick leave in a lump sum up front each year are not entitled to carry over unused sick leave from one year to the following year (no change to this law).

Offering Paid Time Off in Lieu of Paid Sick Leave

Employers who satisfy the paid sick leave requirements by providing paid time off in lieu must ensure that their paid time off policy satisfies the new requirements listed above.

Contact an SMT employment attorney to update your employee handbook and paid sick leave/paid time off policies today!.

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 31, 2023

Coming October 2023:  The California Civil Rights Department Approves New Regulations Covering Background Checks

The California Civil Rights Department (CRD) has approved a set of updated regulations that expand and clarify the current rules regarding employer-conducted background checks.  Specifically, the new regulations provide additional guidance on the handling of pre-employment background checks, with specific attention given to the type of information that should be considered when an employer is deciding whether to rescind a job offer because of an applicant’s conviction history. Notably, the regulations apply to most employers but continue to include certain exemptions for criminal justice agencies, farm labor contractors and those who are required by law to conduct background checks.

Existing law already requires California employers who conduct background checks to do so only after a conditional offer has been made to an “applicant.”  If an employer discovers a conviction in the applicant’s criminal history, it must conduct an individualized assessment that takes into account the (1) nature and gravity of the offense, (2) time that has elapsed since the offense or completion of sentence, and (3) nature of the job held or sought.

Starting October 1, 2023, the new law makes clear that employers cannot circumvent these obligations by making statements such as “No Felons” or “Must Have Clean Record” on job advertisements, applications, postings or any other materials.  In addition, employers conducting background checks must apply these rules to both non-employee applicants and the following categories of existing employees:  (1) employees who have begun employment pending a background check, (2) existing employees who have applied or indicated a specific desire to be considered for a different position, and (3) existing employees who are subject to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.

In an effort to assist employers with the individualized assessment process, the regulations now contain lists of the different types of information that should be taken into account when conducting the assessment.  The updated regulations and corresponding lists can be accessed here.

As before, if an employer decides to revoke a job offer because of an applicant’s conviction history, the employer must notify the applicant of the preliminary decision in writing.  Once notified, the deadline for the applicant to respond must be at least five business days from the date of receipt of the notice.  Applicants who choose to appeal the preliminary decision can do so by submitting mitigating evidence that supports reconsideration.   Employers who receive mitigating evidence are required to reassess the applicant’s suitability for the job.  If, after considering this evidence, the employer still wants to revoke the job offer, it must send a final notice informing the applicant of its decision and their right to file a complaint with the CRD.

The current regulations contain no guidance for employers on what should be considered when performing a reassessment.  To remedy this, the new regulations include examples of the various acceptable information and documentation that should be taken into account.  This information may include the applicant’s age when the conduct occurred, certificates of rehabilitation, letters from teachers, counselors, probation officers or documentation confirming the existence of a disability.  However, an employer may not require an applicant to provide a particular fact or specific document in order to be reconsidered for employment.

The updated regulations also clarify how the timing of the receipt of notice should be calculated.  Specifically, if the notice is transmitted through a format that does not provide a confirmation of receipt, such as a mailed notice with no tracking, the notice shall be deemed received five calendar days after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for addresses outside of California, and twenty calendar days after mailing for addresses outside of the United States.  If the notice is transmitted through email, the notice shall be deemed received two business days after it is sent.

It’s enough to make you wonder if it’s worth performing background checks in the first place, right?

The CRD has created six helpful forms to assist employers in complying with the regulation’s requirements.  The forms include an Ad and App Compliance Statement, Conditional Job Offer Letter, Individualized Assessment Form, Preliminary Notice to Revoke Job Offer, Individualized Reassessment Form and Final Notice to Revoke Job Offer.  All forms can be found here.

As mentioned above, the approved regulations will go into effect on October 1, 2023, so it’s important to audit your practices now if you haven’t already done so.  If you have questions or need help with your background check procedures, please reach out to an SMT employment law attorney.

Off-Duty Cannabis – Off Limits Beginning January 1, 2024

Starting the first of next year, it will be unlawful for California employers to discriminate against an applicant or employee when making decisions related to hiring, termination, or any term or condition of employment based upon either (1) the use of cannabis off the job and away from the workplace; or (2) an employer-required drug screening test that found nonpsychoactive cannabis metabolites.

Despite this new limitation, the law continues to allow employers to consider tests that do not screen for nonpsychoactive cannabis metabolites and, as has always been the case, employers may continue to take action in keeping the workplace drug-and alcohol-free, including disciplining employees for possession or impairment while on-the-job.

As with the background check regulations, there are limited exceptions under the new law for certain applicants and employees in the building and construction trades and those requiring federal background investigation or clearance.

If you need assistance with your drug testing policies and procedures or have questions on this new law, please contact 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 | 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