Employment Law Bulletin | January 2019

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

0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply