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)

• Compile required data
• Submit pay data reports for 2022 through the portal by 5/10/2023
• Pay Data Reporting Portal can be found at https://pdr.calcivilrights.ca.gov/s/

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