I Have California Employees. Now What? Brenda S. Kasper, Esq. SHRM-SCP, SPHR-CA

Transcription

1 I Have California Employees. Now What? Brenda S. Kasper, Esq. SHRM-SCP, SPHR-CA

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3 Eureka!

4 Session Objectives Presentation Title (24 point Calibri; color = white) Understand California employment law differences Determine effective methods to comply with conflicting, multistate employment law requirements Document personnel decisions effectively in light of conflicting legal obligations Understand proper use of the attorney-client privilege

5 Which Law Applies? Help! I Have California Employees, Now What? The Prime Directive: The law MOST FAVORABLE to the employee applies

6 California Major Employment Law Coverage Chart State Law Cal-WARN Act California Family Rights Act Shared Labor Contractor Liability Fair Employment and Housing Act Pregnancy Disability Leave Fair Pay Act Paid Sick Leave Law Cal-OSHA Employers Covered Industrial or commercial facilities that employed 75 full or part time employees in preceding 12 months 50 or more employees in any state 25 or more employees, including workers provided by labor contractor 5 or more persons For harassment, employs 1 or more persons (including contractors) 5 full or part time employees All California employers All California employers All California employers

7 Help! I Have California Employees, Now What? Understand and Effectively Use the Attorney Client Privilege

8 Help! I Have California Employees, Now What? Don t Tell On Yourself in Writing

9 Help! I Have California Employees, Now What? Avoid Deadly Documentation Sins Don t Under-Document

10 Help! I Have California Employees, Now What? Avoid Deadly Documentation Sins Don t Over-Document

11 Hiring and Background Checklist Help! I Have California Employees, Now What? California background check laws in addition to FCRA No credit check except for certain hires Copy of public records reviewed must be offered Criminal conviction prohibitions Statutory list of what can t be considered (recent marijuana misdemeanors, expunged, legally-eradicated or sealed matters, juvenile records, etc.) Wage theft notice Provided at time of hire to non-exempt employees Gives wage rate and other information Provides information on state sick pay entitlements Social media prohibitions Can t require applicant (or employee) passwords or require personal social media access Ban the box laws No state law (yet), but LA, San Francisco and others

12 Help! I Have California Employees. Now What? Non-Exempt Employee Wage and Hour Essentials Daily Overtime City Minimum Wages Time and ½ regular rate for over 8 hours in a workday, in excess of 40 in a workweek and the first 8 hours on the 7 th consecutive workday of the week Double time for over 12 hours in a workday and after 8 hours on the 7 th consecutive workday of the week San Francisco, San Diego and Los Angeles, among others Meal and Rest Breaks Reporting Time Pay Up to two, 30-minute unpaid meal periods per day 10 minute rest breaks for every 4 hours of work or major fraction thereof If furnished less than ½ the usual workday, at least 2 and no more than 4 hours must be paid Wage Statement Requirements Labor Code section 226 requires employers to provide employees with a written itemized statement at the time wages are paid

13 Help! I Have California Employees. Now What? Exempt Employee Wage and Hour Essentials

14 Help! I Have California Employees. Now What? California Minimum Wage (And Salary) Requirements California minimum wage increase for employers** with 26 or more employees: 1/1/17: $10.50/hr $43,680 1/1/18: $11.00/hr $45,760 1/1/19: $12.00/hr $49,920 1/1/20: $13.00/hr $54,080 1/1/21: $14.00/hr $58,240 1/1/22: $15.00/hr $62,400 **New minimum salary rule for certain private school employees as of July 1, 2017

15 Help! I Have California Employees. Now What? California Minimum Wage (and Salary) Requirements California minimum wage increase for employers** with 25 or fewer employees: 1/1/18: $10.50/hr $43,680 1/1/19: $11.00/hr $45,760 1/1/20: $12.00/hr $49,920 1/1/21: $13.00/hr $54,080 1/1/22: $14.00/hr $58,240 1/1/23: $15.00/hr $62,400 **New minimum salary rule for certain private school employees as of July 1, 2017

16 Other Wage and Hour Rules Help! I Have California Employees, Now What? No vacation forfeiture Not required, but once provided, strict rules apply Capping allowed; 150% to 200% of annual accrual Personal days will count as vacation time and can t be forfeited Strict pay day and time of termination rules Immediate payment upon termination 72 hours, depending upon nature of resignation (Pretty much) no deductions from paychecks Employer self help is prohibited Certain deductions permitted with written authorization No deductions from final paychecks, even with authorization Written (and signed) commission plan requirements Plan must include how commissions are computed and paid Provide signed document from company and collect employee receipt Travel time rules CA does not recognize federal planes, trains and automobile passenger rule All time spent in travel must be paid

17 California Fair Pay Act Help! I Have California Employees, Now What? Equal wages for substantially similar work performed under similar working conditions Protects race, ethnicity and sex Eliminates same establishment rule Prior salary cannot justify any disparity in compensation Viewed as a composite of: Skill: education, training, experience, ability and training Effort: physical/intellectual exertion Responsibility: the degree of accountability required in performing a job (i.e., direct reports, budget, outcomes)

18 Help! I Have California Employees, Now What? Employer Defenses to California Fair Pay Act Wage differential based on one or more of the following factors: Seniority system; Merit system; System that measures earnings by quantity or quality of production; and/or A bona fide factor other than sex, race or ethnicity; and Each factor is applied reasonably; and The one or more factors relied upon account for the entire wage differential

19 Help! I Have California Employees, Now What? Employer Defenses to California Fair Pay Act Education, training or experience, provided employer proves: Not derived from sex race or ethnicity; Job-related; and Consistent with business necessity Defense not applicable if employee shows an alternative business practice serves the employer business interest without wage differential

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21 Help! I Have California Employees, Now What? California Paid Sick Leave Law Essentially applies to all employees (including part-time) with limited exceptions Up to 3 days/24 hours required per year Accrual or front load option Employees may use for: Employee illness/preventative care Family member illness/preventative care Sexual assault and domestic violence-related absences Retaliation prohibitions and recordkeeping obligations

22 Help! I Have California Employees, Now What? FMLA Laws With A California Twist The Prime Directive: The Law MOST FAVORABLE to the employee applies

23 FMLA Laws At A Glance Federal California California Family and Medical Leave Act (FMLA) 6 reasons for leave SHC of employee SHC of family member Baby bonding Pregnancy disability Military exigency Military caregiver California Family Rights Act (CFRA) 3 reasons for leave SHC of employee SHC of family member Baby bonding Paul, Plevin, Sullivan & Connaughton LLP Pregnancy Disability Leave Law (PDL) 1 reason for leave Pregnancy, childbirth, and/or pregnancy-related medical condition Benefit continuation Benefit continuation Benefit continuation Accommodation required Transfer required

24 Benefits Eligibility Duration Reason for Leave Family & Medical Leave Act (FMLA) California Family Rights Act (CFRA) Pregnancy Disability Leave Law (PDL) 6 Reasons for Leave: SHC of employee SHC of family member Spouse, son, daughter, parent Baby bonding Take out accommodation and workers compensation sections Birth, adoption, foster care placement Pregnancy disability Military exigency Military caregiver 3 Reasons for Leave: SHC of employee SHC of family member Spouse, child, parent, registered domestic partner Baby bonding Birth, adoption, foster care placement Pregnancy disability expressly excluded Leave for pregnancy, childbirth and/or pregnancy-related medical condition Includes morning sickness, doctor visits, etc. 12 or 26 weeks of leave in a designated 12-month period 26 weeks for military caregiver leave 12 weeks of leave in a designated 12- month period For the period of disability up to 4 months Accommodation required 12 months of employment, 1,250 hours worked in one year prior to leave, 50 employees in 75-mile radius 12 months of employment, 1,250 hours worked in one year prior to leave, 50 employees in 75-mile radius Eligible on first day; no length of service or hours requirement Benefit continuation Benefit continuation Benefit continuation

25 Leaves That May Run At The Same Time A FMLA 12 weeks PDL 4 months... DIS. ACC. Not limited CFRA 12 weeks B FMLA WC DIS. ACC. 12 weeks Not limited Not limited Paul, Plevin, Sullivan & Connaughton LLP

26 Disability Laws Help! I Have California Employees, Now What? Don t forget application of disability and worker compensation laws DISABILITY ACCOMMODATION Fair Employment & Housing Act (FEHA) WORKERS COMPENSATION California specific

27 Help! I Have California Employees, Now What? Key Differences in California s Disability Law Definition of disability requires limitation rather than substantial limitation Failure to engage in the interactive process is a separate violation of law Pregnancy is considered a disability

28 Benefits Eligibility Duration Reason for Leave Family & Medical Leave Act (FMLA) California Family Rights Act (CFRA) Pregnancy Disability Leave Law (PDL) Disability Accommodation (ADA or FEHA) Workers Compensation 6 Reasons for Leave: SHC of employee SHC of family member Spouse, son, daughter, parent Baby bonding Birth, adoption, foster care placement Pregnancy disability Military exigency Military caregiver 3 Reasons for Leave: SHC of employee SHC of family member Spouse, child, parent, registered domestic partner Baby bonding Birth, adoption, foster care placement Pregnancy disability expressly excluded Leave for pregnancy, childbirth and/or pregnancy-related medical condition Includes morning sickness, doctor visits, etc. Finite leave required for disabled employee as accommodation unless: Employer proves undue hardship It s indefinite Granting it would be futile Leave for workrelated injury or illness 12 or 26 weeks of leave in a designated 12- month period 26 weeks for military caregiver leave 12 weeks of leave in a designated 12-month period For the period of disability up to 4 months Accommodation required No specific duration; determined on a case-by-case basis May be longer than FMLA-CFRA period Leave permitted until EE returns, the W/C claim is denied or the EE is P&S and can t (or won t) work 12 months of employment, 1,250 hours worked in one year prior to leave, 50 employees in 75-mile radius 12 months of employment, 1,250 hours worked in one year prior to leave, 50 employees in 75-mile radius Eligible on first day; no length of service or hours requirement Eligible on first day; no length of service or hours requirement Eligible on first day; no length of service or hours requirement Benefit continuation Benefit continuation Benefit continuation Benefit continuation may be limited if done properly Paul, Plevin, Sullivan & Connaughton LLP Benefit continuation may be limited if done properly

29 Help! I Have California Employees, Now What? California FEHA Protections Against Discrimination FEHA protects the following categories: -Race -Religion -Color -National Origin -Ancestry -Physical Disability -Mental Disability -Medical Condition -Marital Status -Sex/Gender -Gender Expression/Identity ALSO NOTE: FEHA prohibits associational discrimination Salary can be used as a marker for age discrimination -Pregnancy -Childbirth -Age -Sexual Orientation -Military or Veteran Status

30 Help! I Have California Employees, Now What? Grab Bag California Employment Law Issues Registered Domestic Partner Rights and Protections Post Employment Non- Compete and Customer Non-Solicitation Agreements Prohibited Employee Privacy Rights under the California Constitution Cal-WARN Coverage and Notice Obligations Employee Rights to Discuss Wages and Terms and Conditions of Employment

31 Key Takeaways Help! I Have California Employees. Now What? Always know the difference between federal, state and local law Prime directive is to comply with the law most favorable to the employee Ensure your policies and practices are compliant in all states in which employees are located Carefully document personnel decisions so that you can prove compliance with applicable law

32 Speaker Information Brenda S. Kasper is a founding member of Kasper & Frank LLP, a law firm representing California and multi-state employers for all of their human resources and employment law needs. She regularly advises employers of all sizes on wage and hour compliance, leaves of absence, disability accommodation, reductions in force, terminations and discipline management, employment contracts, personnel policies, and hiring issues. Brenda is a former HR director so her legal advice is practical, creative and tailored to each client s needs. She is an instructor for the HR Certification program at the University of California San Diego Extension and holds her SHRM-SCP and SPHR-California certifications.

33 Speaker Contact Information Brenda S. Kasper, Esq., SHRM-SCP, SPHR-CA. Kasper & Frank LLP San Diego, California