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California employers must provide certain government-issued pamphlets or information sheets to new hires, to employees on certain types of leaves of absence, and to workers upon termination of employment.
California employers must provide certain government-issued pamphlets or information sheets to new hires, to employees on certain types of leaves of absence, and to workers upon termination of employment.
The California Employment Development Department (EDD) — overseeing unemployment and disability benefits, payroll tax collection, and other workplace matters — has recently updated two mandatory pamphlets.
The “California Paid Family Leave” pamphlet (DE 2511, revised March 2019) outlines government-issued benefits for workers bonding with a new child or caring for a seriously ill family member.
The “Disability Insurance Provisions” pamphlet (DE 2515, revised March 2019) summarizes state-provided disability insurance plans that enable employee to partially replace lost wages due to a non-work-related disability.
Each revised pamphlet contains a new paragraph offering eligible employees the option to receive benefit payments via an EDD debit card or check by mail.
Employers should begin using these new versions right away, available for download from the EDD’s website or purchased from the California Chamber of Commerce or other organizations.
For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 19, 2019
In 2018, the California Supreme Court’sDynamexrulingdrastically changed the criteria for independent contractor classification to determine entitlement to many employee rights and benefits. See,Independent Contractor Status in California Now Falls Under Radically Different Rules(June, 2018).
In 2018, the California Supreme Court’s Dynamex ruling drastically changed the criteria for independent contractor classification to determine entitlement to many employee rights and benefits. See, Independent Contractor Status in California Now Falls Under Radically Different Rules (June, 2018).
Rejecting the long-established balancing test involving some 11 indicators of control vs. independence, Dynamex creates a three-factor “all or nothing” ABC test requiring the hiring entity to show that the claimed contractor:
(A) is free from the hirer’s control and direction in connection with the performance of the work;
(B) performs work that is outside the usual course of the hiring entity’s business; and
(C) is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
However, Dynamex does not apply across the boards. Its “ABC” test pertains only to alleged misclassification of contractors to avoid California Wage Order employee protections on minimum wage, overtime, and meal and rest breaks. The traditional “multi-factor” test still applies to all other alleged deprivation of employee rights by misclassification, including expense reimbursement, wrongful termination, and waiting time penalties. See, Independent Contractor Status? It Depends (November, 2018).
To resolve this split, the California Chamber of Commerce (Chamber) formed the anti-Dynamex “I’m Independent Coalition” to urge state lawmakers to restore the 11-point multi-factor test (see, e.g., Assembly Bill 71).
Conversely, Pro-Dynamex supporters are behind Assembly Bill 5, which aims to expand the Dynamex ruling to virtually all workplace situations while exempting limited professions from the ABC test including insurance brokers, risk managers, licensed physicians and surgeons, registered or licensed securities broker-dealers or investment advisors, and direct sales salespersons.
Stay tuned for the outcome of this hotly contested legislative issue.
For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
April 19, 2019
Starting April 1, 2019, covered California employers must post the newFamily Care and Medical Leave and Pregnancy Disability Leavenotice (DFEH-100-21/March 2019).
Starting April 1, 2019, covered California employers must post the new Family Care and Medical Leave and Pregnancy Disability Leave notice (DFEH-100-21/March 2019).
Previously, the notice was only for employers with 50 or more on payroll. It summarized employee rights and responsibilities when requesting Family Care and Medical Leave and Pregnancy Disability Leave.
The revised notice includes additional information on the New Parent Leave Act (NPLA). The NPLA requires all private California employers with 20 or more on payroll to provide eligible workers with up to 12 weeks of unpaid job-protected parental leave to bond with a new child within one year of birth, adoption, or foster care placement. See also, What’s New For 2018- California “New Parent Leave Act” Impacts Small Business (December, 2017).
Employers with 20 to 49 on payroll must post the new notice. Employers with 50 or more must replace their current notice with the new notice.
Post the notice conspicuously where all employees may view it in each company location. If 10 percent or more of the workforce are non-English speaking, the notice must also be displayed in the applicable language(s).
Employers may purchase and display an all-in-one poster from the California Chamber of Commerce or other organizations.
For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 12, 2019
For California, the Employment Development Department (EDD) is responsible for the administration of unemployment and disability insurance, workforce training services and payroll audits. The agency has the power to imposesignificant, potentially fatal penaltiesfor non-compliance.
For California, the Employment Development Department (EDD) is responsible for the administration of unemployment and disability insurance, workforce training services and payroll audits. The agency has the power to impose significant, potentially fatal penalties for non-compliance.
An EDD visit to look over pay practices is perhaps inevitable for any business that survives and thrives long-term. Random selection or anonymous employee or ex-employee complaints to the agency are common triggers. As with earthquake preparedness in this state, it is better practice to presume such scrutiny will arrive sooner, not later.
About the Audit Process
At the outset, the auditor will typically conduct an interview with the company’s representative to explain the audit process and obtain general information on the scope of the business.
An audit commonly proceeds with on-site examination of company records within a test period of the most recent calendar year. The scope of review can sometimes stretch back two or even three years.
The EDD’s California Employer’s Guide advises that review can encompass a wide range employment and business records including payroll, pay stubs, check registers, annual financial statements, cash payments records, ownership verification, forms 1099, any license required, and federal employment tax reports (e.g. W-2 and W-4).
The dramatically altered criteria for proper classification of independent contractors — issued in the California Supreme Court’s landmark Dynamex decision — can become a major focus of the inquiry. See, Game Changer (June, 2018).
Best practices:
For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
April 5, 2019
Federal, state and local laws have long bannedworkplace racial discrimination. A recent trend seeks to expand such protections to various race-based traits, particularly certain hairstyles.
Federal, state and local laws have long banned workplace racial discrimination. A recent trend seeks to expand such protections to various race-based traits, particularly certain hairstyles.
Under California’s now-pending Senate Bill (SB 188), workplace dress or grooming policies prohibiting natural hairstyles, including Afros, braids and twists would be unlawful race-based discrimination: “In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race.”
The bill declares that “Eurocentric norms” have historically equated “blackness,” and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment. Thus, the bill reasons, “hair discrimination targeting hairstyles associated with race is racial discrimination.”
New York City has already enacted the first-ever legal enforcement guidance against discrimination on the basis of natural hair and hairstyles that disproportionately impact Black people.
Regardless of whether this initiative becomes actual law in California, employers should consider proactively modifying their dress code policy to eliminate any ban on natural hair or hair styles or requirements to straighten or relax naturally curly hair.
See also:
For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
March 29, 2019
Mrs. Aimee Rosales has been promoted to the position of Office Manager. Her larger role comes after over two years of success as technical assistant for our attorneys.
Mrs. Aimee Rosales has been promoted to the position of Office Manager. Her larger role comes after over two years of success as technical assistant for our attorneys.
Aimee has extensive executive and administrative experience in the humanitarian non-profit world.
We are very pleased to have her take the reins of the firm’s management and look forward to what we expect will be even greater ability to service clients and community.
March 23, 2019
In 2016, the U.S. Department of Labor (DOL) issued aFinal Ruleraising the minimum salary amounts to qualify for executives, administrative, professional, outside sales and computer employees overtime exemption under theFair Labor Standards Act (FLSA). It would have more than doubled the amount that employers had to pay their managers in order for them to be exempt from overtime. SeeEmployers Must Comply No Later Than December 1, 2016(May 26, 2016).
In 2016, the U.S. Department of Labor (DOL) issued a Final Rule raising the minimum salary amounts to qualify for executives, administrative, professional, outside sales and computer employees overtime exemption under the Fair Labor Standards Act (FLSA). It would have more than doubled the amount that employers had to pay their managers in order for them to be exempt from overtime. See Employers Must Comply No Later Than December 1, 2016 (May 26, 2016).
The Final Rule was to take effect on December 1, 2016. However, a federal judge blocked its implementation on November 22, 2016. See Judge Stops Overtime Rules Days Before December 1, 2016 Implementation. A pending appeal has been dormant while the DOL engaged in further rule-making for an alternate proposal.
The DOL has recently announced a Notice of Proposed Rule-making (NPRM) for its new proposed exempt employee pay rule. If approved, required pay amounts will increase from $455/week, $1,972/month, or $23,660/year to $679/week, $2,692/month, or $35,308/year, a roughly 49 percent increase. Employers would be permitted to fulfill 10 percent of the requirement through non-discretionary bonuses and other incentive payments, such as commissions.
The proposal seeks to include periodic review for upward increases of the exempt pay threshold, but not automatic increases.
The federal job duties tests will not change for executives and administrators to qualify for overtime exemption.
As proposed, this federal NPRM should have little, if any impact on California’s standards for executive and administrative exemptions from overtime. In this state, the minimum salary to qualify for such exemption already exceed the above increased levels. In California, the qualifying salary minimums for a company employing 26 or more employees are currently $960/week; $4,160/month; and $49,920/year; for a business employing 25 or fewer employees, the qualifying minimums are currently $880/week; $3,813.33/month; and $45,760/year.
The public is requested to provide any comments, which will lead to amendments in the final version of the rule. The deadline for comments will be 60 days from when the Notice of Rule-making is published in the Federal Register.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
March 21, 2019
Ms. Loretta Gardea has joined the firm as our client services representative.
Ms. Loretta Gardea has joined the firm as our client services representative.
Loretta has an extensive background in customer relations as well as experience with sales, marketing and product development.
Loretta also speaks Spanish.
She has an A.A. in Liberal Arts from Bakersfield College, was a foreign language major and attended Nevada School of Real Estate.
We welcome Loretta to the firm and look forward to working with her!
March 14, 2019
Employers who require workers to call in to ascertain whether they are needed for a scheduled work shift will now need to rethink this practice.
Employers who require workers to call in to ascertain whether they are needed for a scheduled work shift will now need to rethink this practice.
California Industrial Welfare Commission (IWC) publishes “wage orders” containing regulations on wages, breaks, record-keeping and other working conditions, including so-called “reporting time pay.”
Employees must receive “reporting time pay” whenever they report to work as scheduled or at the employer’s request but are either not put to work or are given less than half of their scheduled or usual hours. In these instances, the employer must pay half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at the employee’s regular rate of pay. For more information on calculating reporting time pay, please see California’s Division of Labor Standards Enforcement’s frequently asked questions.
It is undisputed that employees must receive reporting time pay whenever required to physically report to work only to be sent home. It has been less clear whether employees must also receive reporting time pay for calling in to find out if they have to work scheduled shifts and then being instructed not to come in to work that shift.
A recent California Court of Appeal decision held that such remote phone calls can trigger the reporting time requirement.
In Ward v. Tilly’s, Inc., plaintiff worked as a sales clerk. Tilly’s allegedly required all such clerks to contact their stores two hours before the start of any tentatively-scheduled shift to determine whether they were needed to work (referred to as “on-call” or “call-in” shifts). Tilly’s disciplined employees for failing to call in or for refusing to work these shifts when instructed to do so. The employees did not receive any compensation if after calling in they were instructed not to work the shift in question.
In her class action complaint, plaintiff Ward argued she and fellow employees should have received reporting time pay whenever they called in and were told not to come to work.
The appellate court agreed with the plaintiff, emphasizing that “‘report[ing] for work’ within the meaning of the wage order is best understood as presenting oneself as ordered” and concluding that the reporting time requirement is triggered whenever an employer directs employees to present themselves for work by:
Although the plaintiff brought this case under Wage Order 7 (mercantile industry), the other wage orders have identical reporting time requirements. All California employers should thus consider the following best practices:
For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
March 13, 2019