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

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