State Reveals Its Template for Notice to All Newly Hired Employees
Balancing Worker Privacy with an Employer’s Rights to Protect Safety
Our articles “Caring for Caregivers” and “Private Household Workers in California” caution that misunderstandings about California’s rules for household employees can be expensive. California’s Domestic Worker Bill of Rights (DWBR), effective January 1, 2014, drives home the need to properly pay the wages and to comply with the hours and working conditions requirements for certain household occupations.
The DWBR entitles nannies and other caregivers to overtime pay.
Assemblymember Tom Ammiano, the author of the new law, states, “Domestic workers are among the most isolated and vulnerable workers in the state. Historically, domestic workers who cared for property were given full wage and hour protections but those who cared for human beings were not. Personal attendants in California were excluded entirely from overtime coverage under [existing law].”
California’s Industrial Welfare Commission (IWC) regulates the wages and hours of workers through a series of “Wage Orders.” Wage Order 15 covers employees engaged in so-called “household occupations,” services related to the care of people or premises in a private household.
Under Wage Order 15, “personal attendants” include nannies, babysitters and certain caregivers who work in a private household to supervise, feed, or dress a child or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. (Wage Order 15 vaguely directed that “personal attendant” status only applies when “no significant amount of work” outside of such caregiving duties was required. The DWBR now specifies that “no significant amount of work” means that work other than “supervising, feeding or dressing” does not exceed 20 percent of the total weekly hours worked.)
Wage Order 15 excluded such personal attendants, including live-in workers, from receiving overtime. Beginning January 1, 2014, the DWBR overrides that wage order, providing that personal attendants “shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.”
This new law will be temporary, ending in 2017 if the Legislature fails to extend them.
The DWBR does not cover, among others, the employer’s close family members; babysitters who are under 18 or casual babysitters (i.e. someone who babysits a minor child on an irregular or intermittent basis and whose vocation is not babysitting).
Improperly calculated overtime and substandard clock-in and clock-out systems and rules can create expensive challenges. Thus, personal attendant employers should take action including:
For more information concerning an employer’s obligations under California or federal wage and hour laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
Beginning on January 1, 2014, California’s Fair Employment and Housing Act (FEHA) will protect an individual’s “military and veteran status” against employment discrimination and harassment.
This new FEHA provision defines military and veteran status as “a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.”
Administered by the California Department of Fair Employment and Housing (DFEH), FEHA also protects race, religious creed, color, national origin, ancestry, physical disability, mental disability, sex, sexual orientation, age (40 or over), and several other individual characteristics or life conditions from such workplace mistreatment. Employment discrimination laws are intended to ensure employers make personnel decisions on the basis of ability and performance and not on factors recognized as irrelevant to the conduct of business or management of personnel.
California’s regard for military and veteran status is distinct from the other protected classifications as FEHA specifically reserves the right of employers to ask applicants for any military service and to give preference to those who served or who have served in the military.
FEHA’s anti-discrimination provisions extend to any business regularly employing five or more persons FEHA’s anti-harassment provisions cover any business regularly employing one or more persons or receiving the services of one or more independent contractors.
For more information concerning an employer’s obligations under federal or California discrimination laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
Our 2010 blog “Office Holiday Survival Guide” provides a roadmap for handling alcohol at holiday office parties. By its off-the-clock and put-work-aside nature, the annual company-wide gathering may also be a prime setting for unwelcome sexual advances by employees, worse yet by managers. Such harassment is not an experience anyone would want to go through. It can also lead to serious legal liability no business wants to experience.
Examples of inappropriate, unwelcome party behavior are:
The employer must be proactive to prevent and, where it occurs, to deal fairly and effectively with incidents of unwelcome advances at the holiday retailer party. For example:
It goes without saying – but we will say it anyway – that if your business does not have a written sexual harassment policy, the time to establish one is yesterday, if not sooner. Please let us know if we can advise you on such matters.
The October 1, 2013 Notice Deadline: The federal Patient Protection and Affordable Care Act (ACA or “Obamacare”) requires the state-by-state creation of the so-called “Health Insurance Marketplace” (“Marketplace” for short, also called the “Exchange”), a virtual one-stop shopping mall for access to private coverage. California’s exchange is “Covered California”: http://www.coveredca.com/. Each state exchange started offering such insurance options on October 1, 2013.
Also by October 1, all employers subject to another federal law –the Fair Labor Standards Act (FLSA) – were to give each of its workers a written notice of the existence of the Health Insurance Marketplace. The FLSA generally kicks in for companies grossing $500,000 or more annually and which are engaged in interstate commerce. “Interstate commerce” is a very broad term. A local farmer selling at the local Saturday market may not be considered engaging in interstate commerce. A local market selling goods originating from other states definitely is. The U.S. Department of Labor offers an online self-assessment for companies to determine if they are subject to the FLSA: http://www.dol.gov/elaws/esa/flsa/scope/screen24.asp.
No Penalty Currently for Employers Who Missed that October 1 Date: While no business is comfortable missing a deadline, the U.S. Department of Labor has confirmed there are no penalties or fines for having missed this October 1, 2013 ACA notice date. See, http://www.dol.gov/ebsa/faqs/faq-noticeofcoverageoptions.html. Thus, while the notification is a legal requirement, it is in effect optional. However, since this optional status could be temporary, employers covered by the FLSA who have yet to comply should arrange to issue these notices as soon as possible.
Content of the ACA Notice: This required, yet optional, written notice must include three points: 1) inform the employee of the existence of the Marketplace/Exchange, including a description of its services and how the employee may contact the Marketplace for assistance; 2) describe how the employee may be eligible for a premium tax credit if he/she purchases a qualified health plan through the Marketplace; and 3) inform the employee that if he/she purchases a qualified health plan through the Marketplace, he/she may lose the employer contribution (if any) to any health benefits plan the employer offers as well as lose certain federal tax advantages.
The U.S. Department of Labor has published two templates for such notice, one for FLSA-covered employers who do not have a current health plan for their workers (see, http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf), the other for such employers who do offer such a plan for some or all of their workers (see, http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf).
For more information concerning employer’s obligations in this area, contact one of our attorneys Tim Bowles or Cindy Bamforth.
With political finger-pointing at a fever pitch, the federal government effected a partial operational shutdown on October 1, 2013. The closures continue into a second week with no end in sight. Several employment related agencies are affected.
The Department of Homeland Security (DHS) provides a free, web-based system (E-Verify) that permits employers to check a new hire’s Form I-9, Employment Eligibility Verification information against federal government databases to verify eligibility to work in the United States. With a few exceptions, employer use of the E-Verify system is optional.
E-Verify will not be available during the government shutdown. This however does not absolve employers from requiring each new hire to complete the Form I-9, Employment Eligibility Verification within three business days of employment to establish he or she is either an American citizen or authorized to work in the United States. See, our blog “New Employment Eligibility Verification Form I-9.”
When E-verify shows an inconsistency, the new hire is in “temporary nonconfirmation status” (TNC). DHS then requires the employer and subject employee to promptly take steps to establish the inconsistency is an error, i.e., the new hire is actually authorized to work in the U.S., or is actual evidence the worker is not authorized. While the E-Verify system is out of operation, all TNC status cases remain pending and employers may not take adverse action against any worker due to such TNC status (e.g., terminate the person for supposedly being unauthorized when eligibility has not been established one way or the other).
The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws protecting employees and job applicants from racial, gender, and several other types of discrimination. The agency is closed during the shutdown, with limited services available. While the EEOC will examine new charges and continue to litigate lawsuits on a limited basis, it has cancelled scheduled mediations and will not be conducting investigations or processing Freedom of Information Act requests. It has also cancelled outreach and education events and will not have staff available to answer questions or respond to public initiated correspondence.
The Administrative Office of the United States Courts has announced that the federal courts will remain open through October 17 by use of fees and other revenue sources. This includes the federal courts’ electronic filing system. After October 17, the chief judge of each district court must decide which employees and services are “essential” to the court’s constitutional duty to hear and decide cases. By law, “essential” employees continue to work during a lapse in government spending and “non-essential” workers are laid off.