Employment Law Bulletin | January 2019 - Spaulding McCullough & Tansil LLP

Employment Law Update Action Items

In this month’s Employment Law Bulletin we bring you our 2019 Employment Law Update Action Items checklist. Employers can use this handy checklist to help ensure their organization is in compliance with new laws that took effect in January 2019. It also includes action items regarding some of the issues we most frequently counseled our clients about during 2018. (See the checklist starting with “Ban the Box.”) Please reach out to an SMT employment attorney if you have questions. We are here to help.

REQUIRED LABOR LAW POSTINGS

Update CA Labor Law Poster

MINIMUM WAGE IN CALIFORNIA

Review hourly pay rates and increase as needed
Review pay for EEs where minimum wage is used as a threshold and increase as needed:
- Wage Order 16 EEs who provide their own hand tools/equipment
- EEs paid minimum wage for travel, waiting time, etc.
- Commissioned sales people (to maintain overtime-exempt status)
- EEs in the construction industry exempt from paid sick leave law based on CBA that provides for pay at least 30% > minimum wage
- EEs exempt from state overtime law based on CBA that provides for regular hourly pay at least 30% > minimum wage
Review exempt EE salaries and increase as needed
Since the new minimum wage laws are triggered by ER size, pay attention to fluctuation in EE counts throughout the year and adjust the minimum wage accordingly
Make sure you have the current minimum wage posting

OVERTIME FOR AGRICULTURAL WORKERS

ERs with > 25 EEs: implement new 9.5/day; 55/week overtime standard now and plan for future changes
ERs with 1-25 EEs, first change is not effective until 1/1/2022, but now is a good time to review future overtime exposure and develop plans to address (limiting overtime exposure by hiring more EEs vs. keeping the same number of EEs who work more hours and are owed overtime)
Since the new overtime law is triggered by ER size, pay attention to fluctuation in EE counts to be sure to apply the correct overtime rule

PAY FOR ALL HOURS WORKED

Audit work practices to identify tasks/time that are not being captured by non-exempt EEs
Develop solutions to ensure all hours worked are paid

FINAL PAY

Audit work practices to identify potential final pay issues
Train supervisors to advise HR immediately of resignations and “no-show, no-call” “deemed resignations”
Discuss common errors with payroll personnel and provide training
Address and resolve final pay inquiries from former EEs quickly

IRS MILEAGE RATE FOR 2019

Pay the IRS mileage rate
If not paying IRS rate, ensure your mileage rate truly covers the cost incurred by the EE

EE PAYROLL RECORD REQUESTS

Respond promptly to EE requests (w/in 21 days)
Provide copies when requested (can charge EE reasonable copy fee)
Train HR personnel

EEs WORKING IN OTHER STATES

Identify each state where EEs work
Identify the number of EEs in each state
Identify the number of exempt vs. non-exempt EEs
Learn the employment laws of those states (contact SMT for assistance)
Make informed decisions – don’t “just follow CA law”
Revise Employee Handbooks and policies accordingly

EMPLOYEE v. INDEPENDENT CONTRACTOR CLASSIFICATION ISSUES

Assess all current independent contractor relationships and reclassify EEs as necessary
Assess any joint ER relationships and their independent contractor issues

ALVARADO v. DART – REGULAR RATE OF PAY (RRoP)

Check all forms of compensation given to non-exempt EEs for potential inclusion in RRoP
Train inside payroll staff about RRoP
Confirm how RRoP handled by outside payroll providers
Assess potential for retroactive liability
Alert upper management about the issues

SEXUAL HARASSMENT TRAINING

Implement training protocol to ensure compliance with timing requirements

LACTATION BREAKS

Update Employee Handbooks and policies
Ensure that EEs have a room or location other than the restroom to use for lactation breaks

EQUAL PAY

Prepare (or have a process in place for preparing) pay scales for applicants who request them
Update employment application

BAN THE BOX

Check job applications to ensure compliance
Train employees engaged in hiring and interviewing candidates
Call an attorney for direction before taking action based on criminal history information

MARIJUANA IN THE WORKPLACE

Ensure that drug and fitness for work policies accurately reflect what your company intends to enforce

REST/MEAL BREAK ISSUES

Review rest and meal break policies and ensure they (1) inform EEs of their rights to meal/rest breaks, including all legal requirements; and (2) establish a procedure to report violations
Publish the rest and meal break policies in a separate agreement signed and acknowledged by all nonexempt EEs
Train supervisors – make enforcement their responsibility and document failures to enforce as a performance issue
Train all EEs and keep records of training
Discipline EEs who violate your policy as you would any other performance issue – DOCUMENT!
Monitor time records to ensure meal breaks are (1) taken; (2) on-time; and (3) long enough
Remind EEs of the policy at least annually – more frequently if needed!

THIRD PARTY PAYROLL ASSISTANCE

Educate yourself – what does your contract say about the responsibilities of the Company/HR vs. the third party?
Be sure to submit all vacation/PTO/sick leave policy changes to the third party and then require proof changes have been made on their end
Request that the third party send you their record of how they are accruing vacation/PTO/sick leave for your company and compare it to your written policies – do they match?
Audit pay stubs and payroll records to ensure:
- vacation/PTO/sick leave are properly accrued and reported
- all forms of compensation are included in the regular rate of pay for nonexempt EEs
- your in-house payroll person is providing the correct information to the payroll company
Audit pay stubs for exempt and nonexempt EEs to ensure they contain all information required by Labor Code §226

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

Employment Law Bulletin | January 2019