Employment Law Bulletin | January 19, 2021

In this month’s Employment Law Bulletin we bring you our 2021 Employment Law Update Action Items. Employers can use this handy list to help ensure their organization is in compliance with new laws that took effect in January 2021. Please reach out to an SMT employment attorney if you have questions. We are here to help.

2021 Employment Law Update Action Items

Required Labor Law Postings

  • Update CA Labor Law Poster

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

Local Minimum Wage Ordinances

  • Determine if any EEs work in cities with local minimum wage ordinances and raise if necessary

OT for Agricultural Workers Act of 2016

  • ERs with > 25 EEs:  implement new 8.5/day; 45/week OT standard now and plan for future changes
  • ERs with 1-25 EEs, first change is not effective until 1/1/2022
  • The new OT law is triggered by ER size, so pay attention to fluctuation in EE counts and apply the correct OT rule
  • Review labor demands and costs and start planning for future changes

2021 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

Compensable Time

  • Review company procedures and evaluate for potential “off-duty control” and hidden compensable time issues

Employer Annual Pay Data Report

  • Evaluate and select your “snapshot period”
  • Begin compiling required data
  • DFEH is developing a sample report form – watch www.dfeh.ca.gov for more information

Labor Commissioner Enforcement

  • Conduct and document investigations into workplace complaints
  • Train supervisors to recognize, field and report EE complaints to HR
  • Train supervisors that retaliatory conduct is prohibited

Wage Judgments: Successor Liability

  • Comply with wage/hour laws
  • Complete corporate statements properly if there is a judgment that must be reported
  • If selling a business, clear up judgments
  • If buying a business, check the SOS website for judgments and request information during the due diligence process

Direct Patient Care EEs: Educational Programs and Training Costs

  • Determine if this law applies to you
  • Update EHB, policies and forms
  • Inform and train staff who manage continuing education programs

Mandated COVID-19 Reporting

  • Draft/Obtain Notices to quickly distribute to EEs and to public health agency (also see OSHA ETS for additional requirements)
  • Contact SMT to develop protocols and train staff on how to act quickly when notified of a positive test result

Workers Compensation COVID-19 SB 1159

  • Train staff on reporting requirements and ensure timely compliance

OSHA COVID-19 Emergency Temporary Standard (ETS)

  • Create COVID-19 Protection Plan (CPP) or supplement current IIPP
  • Draft/Obtain Notices to communicate required information
  • Develop protocols to ensure compliance with short deadlines

Federal, State and Local Emergency Paid Leaves Expired

  • Decide whether to continue offering benefits, if applicable
  • Revise forms, handbooks and policies as needed

Independent Contractor

  • Analyze where this applies to your business/organization
  • Review accounts payable records and identify anyone paid on 1099 basis
  • Review existing IKor Agreements

Settlement Agreement/Release Issues

  • Review any form Releases for compliance
  • Review any Severance Plan documents for compliance

California Family Rights Act

  • ERs of 5-49 EEs
    • Contact SMT for CFRA leave training
    • Contact SMT about adding a CFRA policy to your Handbook
    • Obtain required CA forms from SMT:
      • Notice of Eligibility
      • Designation Notice
      • Certification forms
    • Train supervisors to recognize and report leaves that may qualify
    • Train HR/person in change of implementing and managing leaves about the new law
  • ERs of 20-49 EEs
    • Contact SMT to revise Handbook to add CFRA policy and delete New Parent Leave policy
  • ERs of 50 or more EEs
    • Study where the FMLA/CFRA overlap and don’t
    • Contact SMT to revise Handbook, policies and forms to reflect changes
    • Train supervisors to report leaves that may qualify
    • Train HR/person in charge of implementing and managing leaves about the new changes to the law

Paid Sick Leave Designation During Kin Care

  • Revise Handbook, policies and forms to state that EEs can choose whether to use paid sick leave for absences to care for family members
  • Inform and train HR/payroll/supervisors who handle paid sick leave benefits

Paid Family Leave Insurance Program

Crime Victims Protected Time Off

  • Ensure notice is provided as required and revise leave policies

Mandated Reporters Now Includes Certain Individuals and HR Professionals

  • Check EHB to see who is designated to accept complaints, consider changes
  • Ensure HR professionals and EEs with direct contact and supervision of minors receive appropriate training

Pre-Employment Inquiries & Availability

  • Check applications and train hiring staff to ensure scheduling questions are in compliance

Sonoma County Health Officer Mandatory Flu Shot Order

If applicable, implement system to document required data and notify Sonoma County Health


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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

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