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Equal Opportunity Report Due
Applies to Companies With 100 or More Employees
All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30 th on the EEO-1 Report , addressed to the U.S.
All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30th on the EEO-1 Report, addressed to the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). The requirement stems from the EEOC’s authority to enforce the workplace anti-discrimination provisions of the federal Civil Rights Act of 1964, commonly referred to as “Title VII.”
The EEOC’s website specifies the employers affected:
“All private employers who are:
OR
The EEOC site explains the report’s purpose:
“Using EEO-1 data, EEOC documents the scope and intensity of discrimination and urges employers to take stronger action to overcome the historical exclusion of minorities and women in particular industries and jobs. Technical assistance is provided to employers.”
Covered employers may file the required form on-line.
For questions on this and other employment-related government deadlines or how to administer or enforce workplace anti-discrimination policies, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Law Offices of Timothy Bowles
October 1, 2013
U.S. Government Shutdown Affects Key Employment-Related Agencies
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 third week with no end in sight .
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 third 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.
or call one of our attorneys, Tim Bowles or Cindy Bamforth for further guidance.
Law Offices of Timothy Bowles
October 1, 2013
Employer’s Obamacare Deadline for Notice to Employees Was October 1, 2013
No Immediate Consequences for Late Notice But Businesses Should Still Comply Promptly
No Immediate Consequences for Late Notice But Businesses Should Still Comply Promptly
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.
Law Offices of Timothy Bowles
October 1, 2013
U.S. Government Shutdown Affects Key Employment-Related Agencies
With political finger-pointing at a fever pitch, thefederal government effected a partial operational shutdown on October 1, 2013. The closures continue into a second weekwith no end in sight. Several employment related agencies are affected.
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.
Contact us or call one of our attorneys, Tim Bowles or Cindy Bamforth for further guidance.
Law Offices of Timothy Bowles
October 1, 2013
Final Paycheck
What California Employers Must Pay Upon Termination
A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck.
A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck. He wrote: “I’m no longer working for [the employer] and I thought I was going to get my paid time off with my last check such as … sick time and vacation time. What happened?”
A qualified employment lawyer would have to look over that employer’s specific policies and have more information on the circumstances to provide a more complete answer for this particular incident. However, California’s laws on the general rules for the final paycheck are the starting point.
When an employer terminates a worker without advance notice, all wages and earned but unused paid vacation are due and payable immediately.
Earned Vacation Pay Must be Included in Final Check: California does not require an employer to provide paid vacation to any of its workers. However, when a business does offer this benefit, an important rule applies. Our article “California Vacation Pay” observes: “Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours.”
Sick Pay May Not Have to be Included, Depending on the Specific Company Policy: California also does not require an employer to provide paid sick time to any of its workers. However, when a business does offer this benefit, another rule generally applies. Our introduction article, “California Sick Leave and Sick Pay”, states: “If such an employer does provide paid sick time, a worker has the right to take it as long he or she complies with company rules on the subject. Unlike vacation pay benefits which accrue and are payable on termination if not previously used, business can specify a “use it or lose it” policy on paid sick time, e.g., any portion of entitled sick pay an employee does not utilize in a set period (usually a calendar year) lapses and is no longer available. Typically workplace policies specify new amounts of available paid sick time for each successive annual or other period. It is up to the California employer to decide how much benefit to offer each year or other period.”
The situation may not be so clean-cut. Some workplace policies combine paid vacation days, personal days and sick days into a single “paid time off” policy. In this instance, all such days are an accruing benefit and the employer must pay the amount equal to the earned but unused days at termination. Again, it requires full review of an employer’s exact policies to give a fuller answer in specific circumstances.
For help to employers on how to structure and administer paid vacation, sick and personal day’s policies, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Law Offices of Timothy Bowles
September 11, 2013
Private Household Workers in California
Special Overtime and "Room and Board" Rules Apply
On our article “Caring for Caregivers,” a recent visitor to our asked: “How much is housing and meal value [in my area] for a private household worker under California Wage Order 15?” As in every area of employment law, the answer of...
On our article “Caring for Caregivers,” a recent visitor to our asked: “How much is housing and meal value [in my area] for a private household worker under California Wage Order 15?” As in every area of employment law, the answer of course depends on the circumstances.
California regulates the wages and hours of workers through a series of 17 “Wage Orders,” published by the Industrial Welfare Commission (IWC). An employer must know which of these Wage Orders applies to its particular business or its particular types of employees. For instance, Wage Order 1 covers most manufacturing companies, Wage Order 2 covers “personal service” companies (e.g., beauty salons, health clubs), and Wage Order 4 covers most “white collar” office workers. An IWC pamphlet, available on-line and current to 2013, provides detailed descriptions of all such 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. These include housekeepers, cooks, and home caregivers.
Employing such workers involves special rules not present in most other industries, in part complicated by whether the worker is “live-in” or “non-live-in.” See the “Caring for Caregivers” article for more of the requirements.
When Live-In Household Workers Must be Paid Overtime, Special Rules: Wage Order 15 specifies household workers who reside on the employer’s premises for at least 120 hours per week or spend five consecutive days or nights per week residing on the employer’s premises are normally exempt from overtime requirements (but not minimum wage).
However, Wage Order 15 also requires employers provide live-in employees at least 12 hours free of duty each day, with an additional three or more hours free during each 12-hour work span. Live-in employees that work during such free hours are entitled to overtime at 1.5x times their regular rate of pay. (For calculating “regular rate,” see our blog “Working Overtime in California.”
Wage Order 15 also specifies that when a live-in employee works more than five days in any one workweek without a day off of not less than 24 consecutive hours (except in specially defined emergencies), the employer must pay overtime at 1.5x regular rate up through nine hours worked in the sixth and seventh days and 2.0x regular rate for any hours worked over nine in the sixth and seventh days.
Wage Order 15 specifies different overtime rules for non-live-in household workers, akin to the daily and weekly overtime rules for workers in many other industries. Again, see, “Working Overtime in California.”
Room and Board for Household Workers: An employer and household worker may agree in writing to satisfy at least a portion of the minimum wage requirement by crediting the value of meals and lodging the employer provides to that employee.
However, the employer may not set a “market value” for such credits but must follow the specific chart provided in Wage Order 15. For lodging, the credits may not be more than:
If the employer utilizes the “two-thirds ordinary rental value” measurement for the value of lodging, this could of course vary depending on where the live-in arrangement is located. Such employer would thus have to take care to document the basis of its calculations, including current consumer price index rates for comparable housing. Of course, just paying the $381.20/month or $563.90/month would be the safer avenue, even if those levels happened to exceed the applicable “two-thirds ordinary rental value.”
Under Wage Order 15, the meal credits may not be more than:
The definitions and rules for household workers in California have many other aspects. Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist employers with such questions or issues.
Law Offices of Timothy Bowles
September 11, 2013
Senior Executives Must Receive Harassment Prevention Training
City Settlement of Suit Over Former San Diego Mayor Filner’s Conduct Is a Case in Point
As relayed in our August 30, 2013 blog, San Diego Mayor Bob Filner left office in disgrace last summer on the heels of multiple allegations of sexual harassment. In damning defense, Mr.
As relayed in our August 30, 2013 blog, San Diego Mayor Bob Filner left office in disgrace last summer on the heels of multiple allegations of sexual harassment.
In damning defense, Mr. Filner claimed the City never provided him sexual harassment training. This prompted the California Department of Fair Employment and Housing (DFEH) to charge the City with violations of the Fair Employment and Housing Act (FEHA) requirement to provide such training to its supervisory employees, including elected and appointed officials.
Without admitting liability, the City settled the DFEH claim for a reported $250,000 and on its pledge to provide at least two hours of sexual harassment prevention training to all supervisory employees within six months of hire, election or appointment date, and every two years thereafter. The City also agreed to report compliance to DFEH every six months for the next five years.
DFEH Director Phyllis Cheng announced, “This agreement serves as a model for other local government agencies to fully comply with the sexual harassment training required of all supervisors, including elected and appointed officials under the Fair Employment and Housing Act.”
Private employers should also take heed. California Government Code section 12940(k) requires employers, no matter how many they employ, to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” FEHA also requires California companies with 50 or more employees to provide the same harassment training to its supervisors and executives that the City of San Diego was cited for ignoring.
Failure of a covered employer to comply with those harassment training mandates could be used as evidence of that employer’s failure to take all reasonable prevention steps.
Law Offices of Timothy Bowles
August 30, 2013
Senior Executives Must Receive Harassment Prevention Training
City Settlement of Suit Over Former San Diego Mayor Filner’s Conduct Is a Case in Point
As relayed in ourAugust 30, 2013 blog, San Diego Mayor Bob Filner left office in disgrace last summer on the heels of multiple allegations of sexual harassment.
As relayed in our August 30, 2013 blog, San Diego Mayor Bob Filner left office in disgrace last summer on the heels of multiple allegations of sexual harassment.
In damning defense, Mr. Filner claimed the City never provided him sexual harassment training. This prompted the California Department of Fair Employment and Housing (DFEH) to charge the City with violations of the Fair Employment and Housing Act (FEHA) requirement to provide such training to its supervisory employees, including elected and appointed officials.
Without admitting liability, the City settled the DFEH claim for a reported $250,000 and on its pledge to provide at least two hours of sexual harassment prevention training to all supervisory employees within six months of hire, election or appointment date, and every two years thereafter. The City also agreed to report compliance to DFEH every six months for the next five years.
DFEH Director Phyllis Cheng announced, “This agreement serves as a model for other local government agencies to fully comply with the sexual harassment training required of all supervisors, including elected and appointed officials under the Fair Employment and Housing Act.”
Private employers should also take heed. California Government Code section 12940(k) requires employers, no matter how many they employ, to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” FEHA also requires California companies with 50 or more employees to provide the same harassment training to its supervisors and executives that the City of San Diego was cited for ignoring.
Failure of a covered employer to comply with those harassment training mandates could be used as evidence of that employer’s failure to take all reasonable prevention steps.
Law Offices of Timothy Bowles
August 30, 2013
Travel Pay Revisited
Setting and Calculating Compensation for Job-Related Travel Time
A California worker recently asked how his employer should pay him for job-related travel time expended before and then after a full eight hours of labor at a remote location.
A California worker recently asked how his employer should pay him for job-related travel time expended before and then after a full eight hours of labor at a remote location. He wrote: “If I drove 5-1/2 hours, then worked 8, then drove 5 more hours, wouldn’t my time and a half start on my 8th hour and then double time after my 12th hour? They can’t just pay me double time on my travel pay rate of 8.00 dollars an hour can they?”
The answers, both favoring the worker in this instance, are “yes, daily overtime starts in California after the first eight compensable hours, including travel time” and “no, the employer cannot just calculate overtime from the lower travel-time rate of pay.”
Calculating Overtime When Work-Related Travel Paid at a Lower Rate: Our blog article “Travel Pay in California” observes: “Hourly employees must be paid for all ‘hours worked.’ Depending on the circumstances, an employee can be considered experiencing a ‘working hour’ even when in deep unconsciousness or obnoxious intoxication in seat 36C, Flight 363 Los Angeles to New York. Where an employee is required to travel for work, near or far, the employer must compensate the worker for that time. Exceptions are normal commute time or road trip downtime, e.g., meals or entertainment. Thus, an hourly worker who boards that New York flight for business is earning pay for his or her hours on the plane except the time spent taking a meal.”
That article also points out that businesses can establish a lower hourly rate of pay for unproductive but compensable travel time. Thus, the hourly worker’s employer on the above New York flight could pay him/her minimum wage (currently $8.00/hour in California) for the transit time and that worker’s higher, normal rate (say, $20.00/hour) for time spent working at the destination that day. If that worker flew for five hours ($8.00/hour x 5 hours = $40.00) and then attended a conference for another three ($20.00/hr x 3 hours = $60.00), his total pay that day would be $100.00.
California is one of the few states that require premium pay for either weekly (“time-and-a-half” after 40 in a week) or daily overtime hours (“time-and-a-half” after eight hours in a day and “double time” after 12 daily hours).
As the above writer pointed out, the plot thickens considerably when a California worker works either daily or weekly overtime while earning separate hourly rates during a pay period. It is not true that the employer need only pay 1.5x or 2x of a $8.00/hour travel rate for overtime hours ($12.00/hr and $16.00/hr, respectively) just because those were “extra” or “in addition” to the productive working hours that day.
Instead, California employers must calculate those 1.5x and 2x premium rates from the so-called “regular rate of pay.” “Regular [hourly] rate” is reached by adding up all compensation for a week and dividing it by the total number of hours worked.
Thus, if the above worker flying to New York also returned to California that same week, working a total of 50 hours, with ten of those hours at the $8.00/hour travel rate ($8.00/hr x 10 hrs. = $80.00) and the other 40 hours at the $20.00 rate ($20.00/hour x 40 hrs. = $800), his total earned compensation would of course be $880.00 for those 50 hours. Thus, the regular rate would be $17.60/hr ($880.00 ÷ 50 hrs = $17.60), making the 1.5x rate for each of the ten overtime hours $26.40.
The matter can be further complicated if, say, the worker had two very long work days that week, each exceeding 12 hours. As above, the employee would earn 1.5x the regular rate for the each of the 9th – 12th hours worked each day and then 2x the regular rate for each daily hour worked over 12.
For help to employers on how to structure, administer or enforce a travel policy, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
Law Offices of Timothy Bowles
August 28, 2013