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There are several items of interest right now. We decided to provide a short paragraph about each so you have some awareness of the latest things to think about!
Remote Workers — We are hearing about a couple of things that are newer requests. One is a request for companies to pay a portion of the employee’s rent since you’re now requiring them to work from home. The other is overtime pay for calls after hours… when the after-hours timing is due to time zone differences because employees aren’t necessarily local anymore. Deciding to change part or all of your office to fully remote means you need to consider the fact that you’ve shifted costs from your company to the employee. Since it’s not supposed to cost the employee anything to work for you, plan to reimburse employees for actual added costs in addition to reimbursements for the inconveniences an employee experiences by having part of their home become their office.
COVID-19 Supplemental Paid Sick Leave — California’s Governor Newson has signed SB 95, which requires up to 80 hours of paid sick leave for employees off work due to COVID reasons. This only applies to companies of 25+ [click to read more …]
The American Rescue Plan Act (ARPA) was just signed into law last week. This article will only discuss two items from this new law, the FFCRA updates and the employee retention credit through CARES.
The Families First Coronavirus Response Act (FFCRA) initially began last year on 4/1/2020. This law required employers to notify employees of potential paid time off when they had COVID symptoms, when they couldn’t work due to lack of childcare, and a few other reasons. FFCRA expired on 12/31/2020 but was then extended to 3/31/2021. The extension removed the employer mandate requiring notification to employees and payment for COVID-related time off. However, the tax credit was still available to those companies who chose to continue offering the pay to employees.
ARPA has extended FFCRA to 9/30/2021. In addition, while not mandated, companies will continue receiving the tax credit if they pay employees for FFCRA time off. The most interesting aspect of this new law was the reset of hours for the time off. This means if an employee had previously received the allowed 80 hours of FFCRA sick pay, the clock starts over as of 4/1/2021, and the previously paid time doesn’t count against the employee’s [click to read more …]
“I have a few boxes of old employee files in my warehouse. Is it okay to just throw them out?”
Your HR Survival Tip
The documents in employee files have a required shelf life. The length of retention is often related to the laws concerning how much time an employee or entity has to make a claim and or file a lawsuit where those documents may be needed. Even when you are no longer legally required to keep the documents, attorneys suggest you keep them for the life of the company… just to be safe. This is much easier now that we can digitize those docs. However, be sure to store the digital files on a protected drive so only authorized employees can access them.
No matter what the document may be, do not destroy anything while the employee still works for you. If your managers keep separate notes or records, ask for copies if an employee’s manager is changing or leaving. Below is a very basic list of minimum retention requirements:
Recruitment, hiring, and job placement records — 3 years or longer for any claim or litigation about your hiring practices. Payroll records, including timecards, time-off accruals, schedules, [click to read more …]
“I have been paying employees monthly but then I heard this may not be allowed. Why not?”
Your HR Survival Tip
California is very specific about when you pay employees. The penalties can be steep if you’re doing it wrong because there is often a fine based on each wrong check for each employee. For example, a late paycheck carries a basic fine of $100 per day per employee. In fact, in the past few years, California has also been very picky about what the wage statements (aka paystubs) have on them. Here are some basic rules about paychecks and paydays but, as usual, there may be exceptions to the following:
You must post the day, location (if employees pick up their checks), and time checks are available: this is found on your employment law poster and it must be on the Wage Theft Notice new hires receive. If the payday falls on a weekend or holiday, you may choose to pay employees on the business day before or after but it must be the same each time. The company is responsible for making sure the employee receives their paystub so you either need to forward the hard copy [click to read more …]
“When I fire someone, I just tell them it’s not a good fit. But do I need to tell them anything?”
Your HR Survival Tip
California and several other states have an at-will employment law. This means either you or the employee can end the employment relationship at any time and for any reason, with or without notice. That’s the letter of the law. However, how it plays out in court is very different. In reality, it’s only the employee who has that much freedom.
As the employer, you really do want a reason… a legal reason… when firing someone. You also want to give the employee that reason. If you don’t, they will make up their own reason and it will likely put you in a bad light. The employee will give “their” reason when filing for unemployment, when interviewing elsewhere, and possibly when talking with an attorney. Why would you want to be in that position when it’s not necessary?
Be honest. You can usually tell if someone’s not a good fit within the first 30 days. Even then, there are specifics about why they aren’t a good fit. They don’t get along with their coworkers, they [click to read more …]
“I know I must provide a notice to new hires about wage theft but I don’t really understand it myself so I can’t explain it to my employees. What is it?”
Your HR Survival Tip
California’s Wage Theft Protection Act went into effect on 1/1/2012. This started because employees didn’t fully understand their pay stubs and couldn’t tell if they were being paid appropriately. The Act forced companies to provide the information in a way that was easy to read. Thus, the notice.
The DIR (California’s Department of Industrial Relations) uses the Labor Commissioner’s Office to fight for employees who are not being paid properly by their employers. An example of this was a case that reached a settlement last fall. A Bay Area restaurant owed 133 workers for unpaid minimum wage, overtime, and split shifts premiums. California considers this a theft of wages due to the employees. The original assessments and penalties came to $5.16 million but the final settlement ended up at $2.6 million.
How do you make sure you avoid something similar? Even employees who receive tips have a minimum wage that must be paid for all hours worked. In California, you also pay 1.5 times [click to read more …]
“I keep hearing about low risk, high risk, etc. related to COVID-19 but I don’t know what they mean.”
Your HR Survival Tip
Many of the things we’ve heard relating to COVID-19 have been confusing. This is because the laws and regulations keep changing as the infection rates increase or more is learned about COVID. The Federal Occupational Safety and Health Administration (OSHA) has provided the following to help us:
Lower Exposure Risk — Given to jobs that do not require close contact with other people. This level is typical of remote workers (i.e., those working from home during the pandemic); office workers who do not have frequent close contact with coworkers, customers, or the public; and healthcare workers providing only telemedicine services. Medium Exposure Risk — Given to jobs that require either frequent close contact or sustained close contact with other people in areas where COVID is transmitted from community to community. Typical of this level are workers who have frequent or sustained contact with coworkers or the public, including under close working conditions outdoors or in well ventilated indoor workplaces; and those living in shared housing facilities. High Exposure Risk — Given to jobs with a potential for exposure to [click to read more …]
“I have two contractors that I’ve been using for quite a while. Is it true that a recent ruling might make me susceptible to a retroactive lawsuit if California doesn’t believe they are legitimate contractors?”
Your HR Survival Tip
We have seen many changes to our use of independent contractors over the past three years. California has always assumed a worker is an employee and it’s up to the company to prove otherwise. If you classify someone as a contractor and CA disagrees, it’s considered a “misclassification” with associated fines and penalties.
The standard used for many years was the Borello test that included 20 determination points, with a focus on the amount of control the company had over the contractor and their compensation. Then the CA Supreme Court introduced the ABC test in 2018 during the Dynamex case and the use of contractors was forever altered.
The ABC test focuses on classification standards under California’s wage orders. This test resulted in a very short list of acceptable uses for contractors and who qualified as a contractor. Then AB5 was passed and the door for contractors opened a bit. Proposition 22 opened the door even wider, affecting gig drivers for companies [click to read more …]
“I often hear about one government agency or another but I can’t keep it straight on who does what. Can you help?”
Your HR Survival Tip
It can be confusing but it’s also an important thing to know when you operate a business in California. While we try to provide the agency name at least once when using acronyms, not everyone does.
As you may have guessed, California has many more laws than the Federal government or its own version of laws. This means you need to be careful about the source of your information. If you hear about a legal change, you want to make sure you’ve heard California’s version of it because it’s likely to be different than the Federal version. The following may help you:
Labor Law — This is the branch of government dealing with all things about employees, such as labor law, safety and health, workers’ compensation, etc. The Feds call their agency the Department of Labor (DOL). California calls theirs the Department of Industrial Relations (DIR). Under the DIR is the Labor Commissioner’s Office that will (for free) help an employee get any wages due them. Civil Rights — The Feds use the U.S. Equal Employment [click to read more …]
“Why can’t I use direct deposit for a final paycheck?”
Your HR Survival Tip
The simple answer is that you usually won’t be compliant with the law. Of course, there are exceptions, based on how your payroll is processed.
When you review the legal requirements, it becomes easier to understand what you need to do. The big thing to remember is, if you are late with a final paycheck, you must keep paying the employee until you can get that final check in their hands. The Labor Commissioner is happy to help the employee get the money that’s due plus the daily penalty. Here is the timing for each situation:
Employee is fired — You must provide a final paycheck that same day. On a side note, if you have the employee come to work just to be fired, you must make sure reporting time pay has been added to that check. Reporting time pay is half their scheduled time but no less than 2 hours and no more than 4 hours. If the employee normally works an 8-hour day, their reporting time pay must be 4 hours.Employee has resigned — You must provide a final paycheck on the last day [click to read more …]
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