The Top 5 HR Pitfalls to Avoid for 2015 (including CA Paid Sick Leave) Missionwell Speaker Series June 18, 2015 Steven Adamian, Esq.

Transcription

1 The Top 5 HR Pitfalls to Avoid for 2015 (including CA Paid Sick Leave) Missionwell Speaker Series June 18, 2015 Steven Adamian, Esq. Hosted by: Presented by:

2 Introductions Missionwell, LLC Attorney Steven Adamian of Nonprofit Law Group (Pasadena, CA)

3 Disclaimer This presentation is intended to provide general information only and should not be relied upon as legal advice. The presentation is not intended to be exhaustive, nor is it intended to address every aspect of the discussed law. This presentation does not constitute a guarantee, warranty or prediction about your matter. If you have a question regarding a specific matter, you should contact an attorney.

4 Outline 1. California Paid Sick Leave Law 2. California Family Rights Act (CFRA) 3. FEHA Harassment Update 4. Immigration-Related Protection Update 5. Affordable Care Act Update

5 Healthy Workplace Healthy Families Act of 2014 (CA Paid Sick Leave Law) Summary Law Applies to Most Employees 3 Methods of Calculating Leave How Employee May Use Leave Requesting and Approving Leave How Employee is Compensated Effect of Termination Documentation & Notice Req s Retaliation Protection Action Steps Resources

6 CA Paid Sick Leave Law - Summary Requires employers provide CA employees at least 3 days of paid sick leave per year CA Labor Code Leave accrual goes into effect July 1, 2015 Pending legislation (AB 304) may amend law before effective date Poster & Notice req s already in effect as of January 1, 2015 Local ordinances must be complied with (e.g. San Francisco)

7 Paid Sick Leave Law Applies to Most Employees To qualify, employee must be working in CA for at least 30 days within a year Full-time, part-time, and temporary Exempt and non-exempt Employees not covered: Collective Bargaining Agreement (CBA) with req d sick leave In-home support service Airline flight deck or cabin crew w/ sick leave

8 3 Methods of Calculating Leave Accrual method (statutory) 1 hour accrued for every 30 hours worked beginning July 1 st, or if hired afterwards, from first day of work. May limit use to 3 days of sick leave per year (24 hrs) and may cap total accrual to 6 days (48 hours) so long as employees notified before implementation Unused time carries over to following year EXAMPLE: Employee who works 40 hours/wk accrues 1.33 hours of leave/week Front Load Must provide at least 3 sick/pto days at beginning of each year Doesn t accrue throughout the year and not required to carry over Employer Sick Leave/PTO Policy May offer more time and usage than law, but not less. Policy must be in writing Can determine different accrual rate so long as employer provides at least 3 days of leave in a 12 month period and allows leave for the same purposes as law. Rationale: Accommodates employers that accrue paid leave on a pay period basis

9 How Employee May Use Leave Employee may begin using accrued sick leave on the 90 th calendar day of employment May lend paid sick days to employee in advance of accrual at employer s discretion and w/ proper documentation Qualifying reasons for leave: Diagnosis, care, or treatment of an existing health condition or preventive care for: Self or Family member Employee is victim of domestic violence, sexual assault, or stalking.

10 Requesting & Approving Leave Leave must be provided when employee makes oral or written request If need is foreseeable, employee must provide reasonable advance notice or else as soon as practicable No doctor s certification required Employee decides how much leave needs to use Employer may set reasonable minimum increment of time must use, but not to exceed 2 hours Can t require employee find an employee replacement for the time sick leave used

11 How to Compensate Employee Pay rate: Same as employee s current rate Special calculation if paid by commission or piece rate When Sick Leave Paid: No later than the payday for the next regular payroll period after the sick leave was taken. Example: If paydays are the 10th and 26th, and leave was taken on the 5th, must be paid sick leave by the 26th.

12 Effect of Termination Employee is NOT entitled to payout of any accrued but unused paid sick leave. Doesn t matter if quit, fired, or retired. Previously accrued and unused paid sick days must be reinstated if rehired within 1 year. EXCEPTION: If employer combines sick leave and vacation into a PTO policy, must pay accrued but unused PTO upon termination.

13 Notice & Documentation Req s Itemized wage statement (or written doc) Must provide written notice setting forth amount of sick pay leave available each pay period Wage Theft Notice (LC ) Required to provide to nonexempt employees Upon hire, but by July 8 (within 7 days of changes to info on notice) if hired before January 1, 2015 New Poster notifies of sick leave rights Recordkeeping Must keep records for at least 3 years documenting: number of hours each employee worked and paid sick days accrued and used.

14 Retaliation Protection Can t deny right to use accrued sick leave Can t discharge, threaten, demote, suspend, or in any way discriminate for: Using or attempting to use accrued sick days Filing a complaint or alleging violation of Act Cooperating with investigation Opposing any policy/practices prohibited by Act Retaliation presumed if occurs within 30 days of request of leave Penalties $50 per day per employee, plus other fines. Lawsuit by state for back pay, penalties, liquidated damages, attorney s fees and costs.

15 Action Steps 1. Decide whether to use accrual, employer policy, or lump sum method 2. Review existing sick leave or PTO policies and make necessary revisions 3. Assess recordkeeping, timekeeping and payroll practices and update before deadline 4. Display new poster and use/distribute updated Wage Theft Notice 5. Educate managers about the new law and its prohibitions against denying the right to take leave and against discrimination. 6. Check whether law was changed again, especially before July 1 st because the discussed requirements may change! 7. Consult with legal counsel to review and/or draft sick leave policies

16 Resources Paid Sick Leave website: Workplace and Notice postings in English, Spanish and Vietnamese Contains FAQ Wage Theft Notice:

17 California Family Rights Act (CFRA) Update New regulations go into effect July 1, 2015 Purpose is to clarify and realign with the federal Family Medical Leave Act (FMLA) Some distinctions remain from FMLA

18 CFRA summary Applies to CA employers with 50+ full or parttime employees (including nonprofit religious organizations) Provides for up to 12 weeks of workplace family leave for employees who have worked 1,250 hours within the past 12 months within a 75-mile radius of the worksite. Qualifying reasons include Bonding for Birth of child Placement of child in family for adoption/foster care Serious health condition of: Employee, or Child, parent, spouse, registered domestic partner, including same-sex partner

19 Highlights of Changes Several definition changes/clarifications If met 1,250 hr req t but not 12 month req t, may still meet CFRA if reaches 12 months while on leave. Pregnancy disability is not treated as a serious health condition under CFRA (even if under FMLA) Must maintain employee s group health benefits for entire time on unpaid, protected pregnancy disability leave (up to 4 months), as well as subsequent CFRA leave (up to 12 weeks) Prohibits contacting health care provider for any reason other than authenticating medical certification Prohibits asking employees for symptoms/diagnosis Need good faith, objective reason to seek second certification Requires qualified employers to include CFRA leave in employee handbook if current handbook describes other leaves. Must translate CFRA notice in every language that is primary language spoken by at least 10% of workforce Rules about substituting sick pay/vacation/pto for CFRA leave

20 CFRA Poster & Form Changes New CFRA Notice to be posted effective July 1, 2015 ( Joint Notice for Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave ) htm Revised form for requesting CFRA leave found on p. 32 of pdf ext%20(1).pdf

21 CFRA & Disability Discrimination Warning: Do not take adverse employment action merely because an employee does not qualify for CFRA or has been on leave over 12 weeks! Still have a duty to: Reasonably Accommodate Employee Engage in Good Faith Interactive Process Avoid disability discrimination

22 FEHA Harassment Update California harassment law updated to: Extend protection to interns and volunteers Include abusive conduct in supervisor training

23 Harassment Protection Interns & Volunteers Before, the following individuals were protected from harassment: Employees, applicants, & independent contractors Now, interns and volunteers have been added to the list of individuals protected from harassment under the FEHA.

24 Harassment Training Updated As of January 1, 2015, employers subject to mandatory sexual harassment training must also include a component on the prevention of abusive conduct. Abusive conduct includes: Verbal abuse Verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or The gratuitous sabotage or undermining of a person's work performance. Employers with at least 50 employees must provide sexual harassment training to supervisors Within 6 months of being hired Must train every 2 years At least 2 hours of training Remember - Employers are strictly liable for harassment by a supervisor!

25 Harassment under FEHA Harassment/Discrimination is prohibited if based upon: Race, ancestry, national origin, color Sex, pregnancy, sexual orientation Gender, gender identity, gender expression Religion Marital Status Age Physical or mental disability, medical condition. Genetic Information Military/Veteran status Employers must take all reasonable steps necessary to prevent discrimination and harassment from occurring

26 Immigration-Related Protection Update Driver s Licenses for Undocumented Persons Unlawful to discriminate against an individual because he/she holds or presents a driver s license issued to undocumented persons who can submit satisfactory proof of identity and CA residency. Constitutes national origin discrimination under the FEHA. Employer protected from violating CA law if employer s actions required in order to comply with federal I-9 verification requirements Unlawful to require presentation of driver s license unless possession is 1) required by law or 2) required by the employer and the employer s requirements is otherwise permitted by law. Driver s license information obtained must be treated as private and confidential. Immigration-Related Protections Can t retaliate or discriminate against employee who updates personal information based on a lawful change of name, social security number, or federal employment authorization document. Law already prohibited employer from retaliating against employee when employee asserts protected rights under the Labor Code, even if undocumented. Expanded to prevent a threat to file or filing a false report/complaint with any state or federal agency.

27 Affordable Care Act Update The ACA s employer mandate requires all employers with more than 50 employees (including fulltime equivalent (FTE) employees) in preceding calendar year to provide health insurance for their fulltime employees, or pay a permonth employer shared responsibility payment on their federal tax return. Compliance required by: January 1, 2015 if 100 or more full-time or FTE employees Transitional Relief: Only need to have 70% instead of 95% covered for January 1, 2016 if full-time or FTE employees Full-Time employee works an average of 30 or more hours per week or at least 130 hours per month. FTE : Combine number of hours of service of all non-full-time employees for the month (but don t include more than 120 hours per employee), and divide the total by 120, which equals the total number of FTE employees. Penalty could be $2,000-$3,000 per employee per month depending on circumstances

28 More info on Employer Mandate Q&A on Employer Shared Responsibility Provisions under the ACA: Act/Employers/Questions-and-Answers- on-employer-shared-responsibility- Provisions-Under-the-Affordable-Care- Act#Identification

29 Questions?

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