Employees 1, Employers 0

Governor Newsom signed SB1383 and dramatically changed protected time off as we know it. On January 1, 2021, companies of 5 or more employees will be subject to the California Family Rights Act (CFRA). The CA Chamber of Commerce had declared this a job killer bill and it definitely proves politicians don’t understand the challenges smaller employers face.

CFRA is very similar to FMLA (Federal Medical Leave Act) but includes a few more benefits for the employee than the Federal law. Starting 1/1/2021, the following differences will be in effect:

Affected companies:FMLA = companies with 50+ employees;CFRA = CA companies with 5+ employees. Employee’s employment:Both = employed at least 12 months and worked at least 1,250 hours during that period. Location size:FMLA = 50+ employees within 75 miles;CFRA = 5+ total anywhere. Amount of time off:Both = up to 12 weeks of unpaid, protected time off. Reasons:Both = care for yourself or a family member with a serious health condition, pregnancy, new baby bonding (or foster or adoption), and various military reasons. Family member:FMLA = child (minor or a dependent), spouse, and parent;CFRA = those listed under FMLA plus siblings, grandparents, grandchildren, domestic partners, adult children, and  [click to read more …]

How Unemployment Works

“I just don’t understand how unemployment works when I’m able to offer a little part-time work for employees.”

Your HR Survival Tip

We have been exposed to just about every combination of work versus unemployment this year. One of the questions we get most often is how unemployment is affected if you only give the employee a few hours each week rather than full-time work.

When a worker is on unemployment but also works part-time, they are required to report those earnings every two weeks to EDD (California’s Employment Development Department). EDD then does a calculation based on those earnings versus the worker’s unemployment benefits, based on one of two ways:

Method 1 — This is used when that paycheck is more than $100. The first 25% doesn’t count but the other 75% is subtracted from what the employee would have received in unemployment benefits that period.Method 2 — This is used when that paycheck is $100 or less. The first $25.00 doesn’t count but the rest of the paycheck is subtracted from what the employee would have received in unemployment benefits that period.

We appear to be at the end of the Federal add-on to unemployment. However, knowing these calculation  [click to read more …]

Special Updates

We often see little pieces of information that may affect you. This is just a quick summary of some of those items.

FFCRA Back to School Options

It’s possible the Families First Coronavirus Response Act (FFCRA) has more frequently asked questions (FAQs) and answers than anything we’ve seen in years. As always, the emergency Family Medical Leave (FMLA) component is available to employees who are unable to work or telework because of childcare issues. Now that schools have reopened in one format or another, more explanations were in order. The newest additions are FAQ #98, 99, and 100. Some schools now or in the upcoming months will offer in-person classes. The FFCRA monies will only be available if the school is not offering in-person classes, forcing the employee to stay home with their child due to remote learning. However, keep in mind the original qualification…the employee also cannot be able to work OR telework due to childcare issues.

FFCRA Revisions

Based on a court decision in New York, a few things have changed with how the FFCRA is generally applied by companies.

If someone is still officially your employee, they may be eligible for FFCRA monies even if  [click to read more …]

Too Much Leave

“I have an employee on pregnancy/maternity leave but I need to call her back to work because I’m short on help right now. What are my options?”

Your HR Survival Tip Leave

Different leaves of absence have different rules in California. Many of the differences are related to company size but pregnancy leave has very specific rules.

Delivery

When your employee wants to stop working, she must provide you with a doctor’s note stating the date she must stop working and the expected amount of time off. This is considered the disability period because pregnancy is managed the same as other disability leaves. However, pregnancy disability is protected time off in California (meaning you must give her the same job back once she returns to work). The normal time off is 8 weeks and you cannot require your employee to work during this period or there could be legal issues.

Baby Bonding

Baby bonding is not always protected time off. In a company with 19 or fewer employees, the company does not have to offer any time off for baby bonding. In fact, if you do offer it, it is actually just a personal leave of absence and is  [click to read more …]

COVID-Related Changes

“I haven’t been paying furloughed employees the emergency paid sick leave but just heard I might need to do it. Am I in trouble?”

Your HR Survival Tip

We have been subjected to ever-changing opinions and rules about COVID-19 since February…and now we have more. Most of these changes have not been backdated so you shouldn’t get in trouble for following the guidance current at that time. The latest changes include:

FFCRA for Non-Working Employees — Originally, only employees actively working were eligible to receive the FFCRA (Families First/CARES) money for emergency paid sick leave or emergency paid childcare leave. Now, anyone still in your employ may qualify for FFCRA money even if there is no available work for them (e.g., furloughed or sitting employees). Note: We don’t believe this applies to employees on a leave of absence.

FFCRA Documentation — You may not require documentation for a COVID-related leave PRIOR to the employee starting the leave. The employees will still need to provide documentation but they may begin the leave and then provide backup as soon as it’s practicable.

CDC Quarantine — The CDC is now only recommending a quarantine of 10 days after a positive test (rather than the original  [click to read more …]

Gig-A-Go-Go

We all know the independent contractor scene has been dramatically altered in the past two years. First, the California Supreme Court instituted the ABC test in March 2018, then AB5 was passed in October 2019. Now the Labor Commissioner’s Office is acting on those changes by filing lawsuits against companies.

Mobile Wash, Inc. — This Bellflower company was recently sued by the Labor Commissioner’s Office (LC Office) for misclassifying workers as independent contractors rather than employees. The claim is at least 100 workers were misclassified because those workers did not pass the ABC test. In addition, the company is charged with paying those workers less than minimum wage because the workers were not reimbursed for expenses incurred.

As the company name implies, workers went to customer locations to provide services. The workers were required to use their own vehicle (plus buy gas and insurance), pay for their Mobile Wash uniforms, and pay for cleaning equipment and supplies. In addition, the company charged the worker a $2 transaction fee for every tip left on a credit card. The LC Office also found unpaid overtime, rest and meal break violations, and failure to provide paid sick leave.

Uber and  [click to read more …]

Tool Time

“I’ve always provided the tools my field employees need. Then an employee told me a previous employer made employees use their own tools. How can I implement that?”

Your HR Survival Tip

As you may have noticed, there seem to be laws or lawsuits for nearly everything employment-related in California. There are three things to consider when you have employees who use or need tools in the field:

Employer-provided tools — You provide all the tools, including maintaining and replacing them. You are not able to charge employees for the replacement of lost tools so consider a check-out/check-in system to track your tools.Employee’s tools — In California, you are only able to require employees to use their own tools on the job if you are paying those employees at least twice the state minimum wage (currently $24 or $26 per hour, depending on company size). If you have employees earning less than that, you are responsible for the tools.Paid commute — If you have employees carrying your company tools in their personal vehicle every day, there is the possibility you may be responsible for their commute time and costs. Current lawsuits haven’t yet been settled but it appears a paid  [click to read more …]

Careful v. Practical

“I don’t know how to handle all the possible exposures I’m hearing about from employees. Nothing seems to work for both the employee and my company.”

Your HR Survival Tip

Not surprisingly, companies are receiving more and more reports of employees who may have been exposed. We don’t know of any single solution that will work for everyone but we can tell you what some companies are doing.

It’s important to remember that without COVID symptoms, there is no financial help for the employee from the government. The employee must have symptoms AND be talking with a doctor or getting tested to qualify for the Families First money (emergency paid sick leave for 2 weeks).

There are three primary exposure solutions we’re hearing about but each has a negative:

Super Safe — You have an employee who was “possibly exposed” go into self-quarantine for 2 weeks. Give some thought about how many of your employees may be potentially exposed at any one time and that those employees won’t be paid during the quarantine period since they don’t have symptoms. The negative is the employee is unpaid for two weeks and you’re low on headcount that could affect your  [click to read more …]

Managing Unemployment Forms

“My business was closed for over 2 months due to the state stay-at-home orders. In the past few weeks, I have been bombarded with various unemployment claims and notices but the deadlines for responding have passed. What do I do with them?”

Your HR Survival Tip

You only had to hear the news of all the layoffs caused by the pandemic to know EDD (California’s Employment Development Department) was swamped with unemployment claims. They are slowly catching up but we’ve seen a lot of forms arriving in June but with March and April dates. So now it’s your turn to be swamped.

The way we like to handle them is to first sort them by employee so you can see if there are multiple documents or a progression in the documents for that employee. The most common are:

Notice of Unemployment Insurance Claim Filed — This is the first form you receive. It shows you an employee has filed a claim. The form includes the employee’s name and social security number, the effective date of the claim, the last day of work, and the reason the employee gave them for not working. If the information is correct, you  [click to read more …]

Commission vs. Bonus

“I want to pay my employees a commission of $20 for every successful upsell of our products to a current client. How do I set that up?”

Your HR Survival Tip

Employees are often excited about an opportunity to earn extra money. Let’s first make sure you are using the correct terms and processes for it so you remain in compliance with California law.

In California, a commission is only available when the “salesperson” is actively involved in making and closing the sale and earning a percentage of the sale. You must have a written commission plan signed by each employee with specific details, in accordance with the law. In your case, commission is the wrong term for what you’ll pay.

Since your employees will earn a flat $20 for each upsell, this is considered a non-discretionary bonus. It’s non-discretionary because it is expected whenever they successfully upsell a client. It’s a bonus because it is a flat dollar amount instead of a percentage of the sale.

The only negative is, in CA, a non-discretionary bonus is subject to overtime for the period it covers. For example, if an employee’s bonuses are earned and paid each pay period, you  [click to read more …]