Governor Brown Signs Bill Amending California’s Paid Sick Leave Law

Illustration depicting a highway gantry sign with a sick leave concept. Blue sky background.

Governor Brown Signs Bill Amending California’s Paid Sick Leave Law

California’s paid sick leave law was amended on July 13 and the bill was passed by Governor Brown as an “urgency statute”. It took effect immediately. On July 1, 2015, the Healthy Workplaces, Healthy Families Act of 2014 went into “effect”. As a result of this act, employers are required to provide paid sick leave to employees who work 30 or more days in California in a calendar year.

A few of the more noteworthy changes are listed below:

  • An employee must work for the same employer in California for 30 days to be eligible for sick leave.
  • The method in which the paid sick leave is accrued was amended as well. Originally, employers provided sick leave in one of two ways: 1) employees were allowed to accrue sick leave at a minimum rate of one hour for every 30 hours of work. Or 2) simply affording the employee 24 hours at the beginning of the year.

–       Employers have now been offered alternative accrual methods. These alternative methods provide greater flexibility for employers. An employee can now accrue paid sick leave per pay periods, per work week or per month. This is contingent upon the employee having 24 hours of paid sick leave available by his or her 120th calendar day of employment.

–       If an employee had accrued paid sick leave prior to January 1, 2015, that accrual method will satisfy the law’s requirements if the employee is eligible to earn a minimum of 24 hours within 9 months and will accrue 8 hours of paid sick leave within 3 months. Since this “grandfathering of pre-existing accrual methods” depends on terms and conditions prior to January 1, 2015, it is advisable to seek counsel to review the applicability to your particular circumstance.

  • An employer might choose to provide unlimited paid sick leave or unlimited paid time off. This should be notated on the employee’s itemized wage statement or indicated on the law’s written notice requirement. Such policies as unlimited sick leave should be carefully drafted, as there are many implications to this type of policy.
  • The rate of pay has been clarified as well. Essentially, paid sick leave for exempt employees should be calculated in the same way as other forms of paid leave. However, for nonexempt employees, employers can pay out sick leave at the regular rate of pay for the work week in which an employee would use the paid sick leave or employers can divide the employee’s total wages by the employee’s total hours worked in the full pay periods of the previous 90 days of employment.

Employers should review their current paid sick leave law policies against the aforementioned changes to be sure that their policies comply with the amendments that were recently signed into law by Governor Brown.

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California Supreme Court Provides Guidance on Suitable Seating Requirements

California Supreme Court Provides Guidance on Suitable Seating Requirements

Recently, the California Supreme Court was callel_030d on to clarify California’s suitable seating requirements, as requested by the Ninth Circuit. The Supreme Court complied and filed an opinion on April 4.

The “suitable seating” requirement for employees falls under the California Wage Order provision. The Wage Orders state that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Outlined below is a suggested approach to provide for suitable seating for employees:

  • Identify the actual tasks performed by an employee at a specific location in the workplace.
  • Can the task be performed while sitting or does it require standing?
  • Given that a job can be performed while seated, an employer may still consider the practicality of this.

In analyzing the feasibility, consider the following:

  • Does sitting while working impact the quality of the overall job performance?
  • Does providing a seat overly interfere with other standing tasks?
  • Does the frequency of shifting from sitting to standing interfere with the work?

What should employers do?

 Overall, seating is important, whether or not your employees perform standing or seated job duties. As an employer, it is important to determine if a seat is required. In making this determination, focus on the tasks performed within specific locations at the workplace and consider that although some tasks may require standing, an employee may still be entitled to a seat to accomplish additional tasks at the same location.

When formulating your analysis, keep in mind that you need to take into account the entirety of circumstances in order to decide whether providing a seat is feasible.

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It Happened So Fast and Sans Public Hearings – Did You Miss It?

th[10]It Happened So Fast and Sans Public Hearings – Did You Miss It?

On March 31, 2016, the California legislature approved a new statewide minimum wage. Governor Jerry Brown signed the bill into law on Monday, April 4, 2016.   This new regulation will gradually increase the state’s minimum wage over the next several years from the current $10.00 per hour to $15.00 per hour by 2022. These changes will also increase the minimum exempt salary requirement for exempt California employees.  Note that this law will increase the minimum wage for “large” and “small” businesses according to two schedules:

The law defines “large businesses” as those employing 26 or more employees. (We know, we don’t think that is “large” either.) The increase to minimum wage rates for these organizations follows this schedule:

  • January 1, 2017: $10.50
  • January 1, 2018: $11.00
  • January 1, 2019: $12.00
  • January 1, 2020: $13.00
  • January 1, 2021: $14.00
  • January 1, 2022: $15.00

Businesses employing 25 or fewer employees catch a bit of a break because the minimum wage increases will be delayed by one year. The small business increase schedule looks like this:

  • January 1, 2018: $10.50
  • January 1, 2019: $11.00
  • January 1, 2020: $12.00
  • January 1, 2021: $13.00
  • January 1, 2022: $14.00
  • January 1, 2023: $15.00

Once the CA minimum wage reaches $15.00 per hour, automatic cost-of-living increases will be required to kick in January 1st of every year.  The governor will have the discretion to temporarily suspend these increases when certain economic factors are present. (ie, indications of an economic downturn.)

Because of these increases, many employers may find themselves needing to make changes in the way supervisors and managers are paid.  Recall that the minimum salary level requires exempt employees to earn at least twice the state’s minimum wage.

The current minimum salary required for an exempt employee is $41,600 annually.  Under the regulations as they stand today, this amount will also increase with the minimum wage.

Stay tuned for additional changes in regulations regarding minimum wage. The Obama administration’s plan to change the Fair Labor Standards Act regulations to raise that minimum to at least $970 per week ($50,440 per year), and then annually adjust the minimum to keep pace with inflation, is expected to take effect in the summer or fall of 2016. In order to be exempt from overtime pay for hours worked in excess of eight per day and 40 per week, any exempt employee in California must be paid a salary high enough to satisfy both the state and federal minimums.

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New California Employment Regulations Effective April 1, 2016

The Fair Employment and Housing Council of the California Department of Fair Employment and Housing integrated several new discrimination and harassmecloud_discrimination_mobilizingideasnt regulations, which took effect April 1, 2016. Now is the time to update your policies and trainings. In light of these changes, immediate action items are listed below for the development of a written harassment, discrimination and retaliation prevention policy that includes the following:

  1. It should list all protected categories as covered by the California Fair Employment and Housing Act.
  2. Co-workers and third parties, as well as supervisors and managers, shall not engage in prohibited conduct.
  3. If a complaint is received, an employer shall a) keep matter confidential, to the extent possible b) ensure a timely response c) provide for qualified personnel to impart a timely investigation d) document and track progress e) offer options for remedial resolutions and a timely conclusion.
  4. An employee is not obligated to complain directly to his or her supervisor.
  5. Supervisors shall report any complaints to a designated company representative.
  6. Employers shall not be victims of retaliation for lodging a complaint or for being a part of the process.

Employees should continue to provide the Department of Fair Employment and Housing’s brochure on sexual harassment to all employees (Form DFEH-185), but also integrate the aforementioned policies. In addition to discussing policies at hire, an employer must specifically do one or more of the following: 1) print and distribute a copy of the brochure to all employees, with the employee signing and returning an acknowledgement form 2) send the policy via an email with an acknowledgement return form or 3) post current versions of the policies on company intranet with a ‘receipt and acknowledgement’ tracking system.

In the new regulations is clarification of the requirements for “abusive conduct” training. These trainings should:

  1. Discuss the definition of “abusive conduct”, providing examples of such conduct.
  2. Explain the negative effects of abusive conduct.

Along with the new regulations, are newer specific definitions for three terms:

  • “Transgender” ­- term that refers to a person whose gender identity differs from the person’s sex at birth.
  • “Gender Expression” – refers to a person’s gender-related appearance or behavior, which may or may not be stereotypically associated with the person’s sex at birth.
  • “Gender Identity” – a person’s identification as male, female, transgender or a gender different from the person’s sex at birth.

The new regulations clearly state the appropriate content for abusive conduct trainings and anti-discrimination policies, as well as how to distribute and enforce such policies. As a California state employer, you should take advantage of this guidance and use it to ensure your policies, trainings and practices are in compliance.

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News to Watch: EEO-1’s

Last week, the Equal Employment Opportunity Commission (EEOC) announced a proposed change to the annual Employer Information Report, or EEO-1. Currently, employers with 100 employees are required to provide the race, ethnicity, sex, and job category on the EEO-1 report.  If the proposed changes were enacted, they would be required to report pay data as well.

It is still under review and commentary, but if this revision is adopted, private employers and federal contractors with over 100 employees would be required to submit data on employees’ W-2 earnings and hours worked. Federal contractors with 50-99 employees would continue to report on race, ethnicity, and sex by job category, but would not report earnings data; private employers with fewer than 100 employees would continue to be exempt from EEO-1 reporting.

The proposed rule was published in the Federal Register on February 1. The comment period is now open, and will close on April 1, 2016.

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Are Your Computer Professionals Exempt or Non-Exempt?

Computer Professional Overtime Wage Exemption:

We all know California is home to a multitude of Software and Computer related companies. We also know California is home to some of the most complicated employment laws.  It should be no surprise then, that California has its own set of salary requirements for determining which types of Computer Professionals will be exempt from overtime pay requirements.

If an Employer wishes to apply the Computer Professional Exemption to an employee working in the state of California, there are minimum salary/wage requirements which differ from those under Federal Law.  For 2016, the hourly rate for the computer professional exemption increased for 2016 to $41.85 per hour. The minimum monthly salary exemption is $7,265.43, and the minimum annual salary exemption is $87,185.14.

Additionally, to qualify under this exemption, the employee must be an individual who is:

  1. Primarily focused (>50% of the time) on generating work that is intellectual or creative in nature.
  2. Primarily focused on work that requires the exercise of discretion and independent judgment.
  3. Primarily focused on duties that consist of one or more of the following:
    • Applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications.
    • Designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications.
    • Documenting, testing, creating or modifying computer programs related to the design of software or hardware for computer operating systems.
  4. Is “highly skilled and proficient” in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering.
  5. The employee’s hourly rate of pay is not less than that set by law. If the employee is paid on a salaried basis, the employee earns an annual salary which is paid at least once a month and in a monthly amount of not less than rate set by law.

Employers Beware! Even if you pay your employee enough to meet the salary requirements for the exemption, there are certain conditions which may mean your employee should still be classified as non-exempt. An example is when the employee engages in the simple operation of computers or in the manufacture, repair or maintenance of computer hardware and related equipment. Other conditions also exist.

If you have never had your employee classifications reviewed by an HR or Employment Law professional, it is strongly recommended that you do so. Employers should review jobs for correct classification when new jobs are created, duties for existing jobs have been updated, or new laws have been passed which may impact exempt/non-exempt status.

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Today We Honor Those Who Have Served

HRPG wishes to take a moment to thank all of are Veterans. Men and women who have served our country to protect us and our liberties. Thanks to you all!


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Performance Profiles Can Help You Make Better Hires

Performance profiles provide a way to describe desired results and deliverables you want from an employee who provides superior performance. They redefine “requirements” to reflect what “needs to be accomplished” rather than what a candidate (external or internal) needs to “have.”

Every job has six to eight critical performance objectives that ultimately determine success. It is recommended that you start by developing two or three performance objectives for each applicable category shown in the table on the following page. Then, narrow this preliminary list down to the top six to eight objectives, prioritized in order of importance. This prioritized list is the key to clarifying expectations and job understanding and will drive the selection process.

Create SMART performance objectives:

• Specific – details of needs to be done
• Measurable – amounts of change or % of change, required deliverable, etc.
• Action oriented – use action verbs
• Results defined – defines the desired outcome
• Time based – how long from start to finish

Recruiting from a Performance Profile as opposed to simply a job description will allow both candidate (soon to be new hire) and hiring manager to enter into the relationship with complete understanding of how success in the role will be measured. A great way to segue the recruiting process into performance managment!

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Vaction, Sick and PTO

Employers who wish to offer some paid time off to their employees have several different options for doing so.  However, employers also need to be aware that sick leave, vacation time and personal time off (PTO) policies all need to be written and tracked differently.  Vacation and PTO are considered to be a form of wages that employees earn. Under California’s wage and hour laws accrued vacation generally must be paid out at termination.  However, sick leave does not need to be paid out.   PTO combines sick leave and vacation into one pool. The employee may then use PTO for personal reasons, vacation or sick leave.  Like straight vacation time, it must accrue and be paid out upon termination.

With the recent changes to CA Paid Sick Leave, it is strongly recommended that you review your paid time off policies.  Ensure that your employee handbook contains information about these benefits including eligibility requirements, procedures for calling in sick as well as obtaining approval of vacation or PTO.   Laws regarding accrual and use of vacation, sick and PTO time all differ, so it is best to have everything in writing and updated against current laws.  When drafting the policies, it will also be a good time to audit how you are classifying your employees as exempt or non-exempt under FLSA as that can also impact your organization’s time off policies.

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Don’t Pass on Good Candidates for Not-So-Good Reasons

Making hiring decisions solely based on the candidate’s resume will likely cause you to miss on some really talented people. It is important to remember that for most positions when you are considering candidates for employment you should be assessing their ability to do the job, not how well they sell themselves or how handy they are with formatting the documents in Word.

Another common reason hiring managers pass on candidates is for a lack of industry experience. Objectively speaking – expect under limited circumstances – industry experience is unnecessary for success in most positions. Truly agile learners with the ability to draw on past experiences to solve novel problems will be able to pick up the nuances of any industry very quickly. Uncreative, inflexible thinkers will never be effective problem solvers no matter how many years of experience they have in a given industry.

Don’t pass over potentially good candidates for not-so-good reasons!

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