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The California Industrial Welfare Commission’s (IWC)18 published “wage orders”can be among the most underutilized items in an HR Manager’s toolkit. They are chock full of wage and hour regulations regarding overtime wages, meal and rest periods, record-keeping requirements and other working conditions.
The California Industrial Welfare Commission’s (IWC) 18 published “wage orders” can be among the most underutilized items in an HR Manager’s toolkit. They are chock full of wage and hour regulations regarding overtime wages, meal and rest periods, record-keeping requirements and other working conditions.
California employers must comply with the IWC wage order (or, in some cases, more than one order) applicable to their industry or profession. For example, Wage Order 1 applies to the manufacturing industry; Wage Order 4 to professional, technical, clerical, mechanical and similar occupations; and Wage Order 16 to occupations in the construction, drilling, logging and mining industries.
Each of the 18 wage orders also contains or references regulations on applicable minimum wages.
Recently, the California Department of Industrial Relations (DIR) updated all but Wage Order 14 (agricultural workers) and Wage Order 17 (miscellaneous) to include the 2017 and 2018 state minimum wage rates increases. See, California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).
After determining which wage order(s) apply to a business and its employees, employers must post the most recent version(s) at the workplace or on the job site where employees can read it/them easily.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
June 2, 2017
Under federal law, employers have the responsibility to verify the identity and employment authorization of their employees through the Form I-9 (Employment Eligibility Verification).
Under federal law, employers have the responsibility to verify the identity and employment authorization of their employees through the Form I-9 (Employment Eligibility Verification).
On November 14, 2016, the U.S. Citizen and Immigration Services (USCIS) published a revised Form I-9, allowing employers to download and save it as a PDF, fill in the blanks electronically, and then print the form for their records.
On April 6, 2017, the USCIS announced a glitch had occurred with this on-line form between November 14 and 17, 2016 causing social security numbers entered in Section 1 of the form to print incorrectly. For example, 123-45-6789 entered on that on-line form would appear on the printed form as 123-34-6789.
Any employer who downloaded the form during those three days may still be unknowingly printing incorrect social security numbers. Affected employers can and should fix this particular glitch as follows:
It is important for employers to fix any errors as soon as possible, as penalties for failure to complete this form correctly range from $216 to $2,156 per infraction.
See also, Checking Worker Immigration Status (Oct, 2016) and New Changes on Employment Eligibility Verification Form I-9 (May, 2016).
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
May 31, 2017
California’s Home Care Services Bureau (HCSB) licenses and oversees Home Care Organizations (HCOs) that provide employee caregivers to private clients. See:You Snooze, You Lose(April, 2016) andHome Health Care Organizations Last Chance to Continue Operations After June 30, 2016(June, 2016).
California’s Home Care Services Bureau (HCSB) licenses and oversees Home Care Organizations (HCOs) that provide employee caregivers to private clients. See: You Snooze, You Lose (April, 2016) and Home Health Care Organizations Last Chance to Continue Operations After June 30, 2016 (June, 2016).
In its May, 2017 webinar, the HCSB confirmed that unannounced inspections of HCO administrative offices are in progress. HCSB analysts – the HCSB staffers assigned to specific HCOs – conduct these inspections. As a word for the wise, the three most common problems analysts reportedly encounter are: (1) no licensee or designee is present or office closed during stated business hours; (2) training is not documented; and (3) forms are not complete.
An HCO is required to specify on its licensing application the individual licensee as well as any other person(s) who can act as representative or “designee” in the absence of the licensee. See Application Instructions for a Home Care Organization License. To accommodate such unannounced inspections, the HCSB requires an owner/licensee or a designee to be on the HCO’s office premises and available during all office hours that the HCO stated in its application.
Thus, in advance of any such sudden visit from the state, an HCO should: (a) verify those listed on its application as licensee(s) and designee(s) along with office hours stated; and (b) ensure it has at least one of these people present and the office open during those hours. Changes in designated persons or office hours are possible but require notification to the HCSB.
Notably, if an HCO is not open to the public more than eight consecutive hours on any day during a month or is open by appointment only, an analyst will notify the HCO’s contact person at least two hours before arriving for an inspection. That HCO must then have its licensee or a designee at the office at the appointed time to meet with the analyst.
The HCSB’s recent webinar also reported that analysts are frequently finding Home Care Aide (HCA) training has been done but the training logs are out-of-date. The solution is of course obvious, with records updated and maintained as current before any analyst shows up to inspect.
As for incomplete forms, HCOs should be using the HCO inspection checklist to prepare for an inspection. The HCO needs to ensure that it has all specified forms ready to provide to the analyst. The time to check for that is before the analyst arrives. These should be final versions of each form, not drafts.
The HCSB also advised in that webinar that it has proposed application/registration fee increases to meet rising expenses. If approved, the HCA fee will go from $25.00 to $50.00 every two years while the biannual HCO fee will go from $5,165.00 to $5,803.00.
For further information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
May 25, 2017
As relayed in our December, 2016 blogHot Off the Presses, no less than 23 local governments are now requiring minimum wage levels higher than the California standard. Nine municipalities are raising their rates effective July 1, 2017, withlarger Emeryville employersthe hardest hit. Berkeley will again raise its rate on October 1.
As relayed in our December, 2016 blog Hot Off the Presses, no less than 23 local governments are now requiring minimum wage levels higher than the California standard. Nine municipalities are raising their rates effective July 1, 2017, with larger Emeryville employers the hardest hit. Berkeley will again raise its rate on October 1.
*Note: Locations with an asterisk have not updated their notices yet. We recommend checking the official website shortly before the effective date to download the most current notice.
Each such ordinance carries its own particular definitions of which employees are covered, including the threshold number of days or hours of labor within that city’s or county’s boundaries for that particular law to apply. A more fundamental question is whether a given work location is within a municipality’s geographic limits, not necessarily a straightforward issue in a widespread city as Los Angeles. See: map, City of L.A..
For more information, please contact one of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.
Cindy Bamforth
May 19, 2017
A Los Angeles superior court judge has ruled McDonald’s in violation of California’s daily overtime laws in 119 restaurants.Maria Sanchez v. McDonald’s Restaurants of California, Inc., L.A. County Superior Court No. BC499888, April 20, 2017 order. The decision is a lesson in the close care required on employer overtime pay practices.
A Los Angeles superior court judge has ruled McDonald’s in violation of California’s daily overtime laws in 119 restaurants. Maria Sanchez v. McDonald’s Restaurants of California, Inc., L.A. County Superior Court No. BC499888, April 20, 2017 order. The decision is a lesson in the close care required on employer overtime pay practices.
California requires that hourly employees receive overtime pay for time worked beyond forty hours in any one workweek or after eight hours in a workday. A “workday” is any consecutive 24-hour period commencing at the same time each calendar day. An employer has the prerogative to begin that 24-hour period at any time of day.
The court found McDonald’s payroll computer program was fudging on this 24-hour workday standard, and thus shorting workers on overtime pay, when: (a) an employee worked an “overnight shift” that started in the evening of Day One and ended after midnight on Day Two; and then (b) worked another shift later during that Day Two. Although the company regarded its 24-hour day to begin at midnight and end at 11:59 p.m., its payroll software was nevertheless counting all of the overnight shift hours above as work during Day One only. Only the later day-shift hours on Day Two were counted as work on that Day Two.
Thus, for example, if an employee worked an overnight shift that started at 10:00 p.m. on Day One and (with half-hour unpaid meal break) ended at 6:30 a.m. on Day Two and then came back to work another Day Two shift between 2:00 p.m. and 10:30 p.m. (with another such meal break), McDonald’s counted the whole overnight shift as Day One hours and only the later 2:00 p.m. – 10:30 p.m. day shift as Day Two hours. This would mean no overtime pay for this worker, since each shift in this example was only eight hours long.
The court found this practice in violation. Again, the company admitted that for the purpose of daily hours’ calculations, its 24-hour day began at midnight and ended at 11:59 p.m. Thus, McDonald’s was required to count all Day Two hours from midnight that day. In the example above, that would mean only two hours worked for Day One and 14 hours worked for Day Two, with 1.5x regular pay rate for the 9th through 12th hour and 2x regular rate for the 13th and 14th hours. See: Working Overtime in California.
Ironically, if McDonald’s had been careful to clearly define its 24-hour workday in policy and practice as beginning at 6:30 a.m. and ending at 6:29 a.m. the next day, it would have owed no California daily overtime on this night-shift, next day-shift scheduling. With that break point between workdays, the company could have properly counted each of the shifts in the example above as eight hours long.
If this ruling applied to only one or a few workers, its actual impact on the employer would of course be minimal. However, this Sanchez case is a certified class action lawsuit, meaning that thousands of workers employed in the 119 restaurants from January, 2009 to the present may be affected, with significant total back pay, penalties and interest assessed at the trial scheduled for later this year. Targeting larger employers as McDonald’s, such “class action” suits have become big business in the courts across the United States, including California.
Moral: careful and continuing management attention to the details of workforce timekeeping, wage calculations and the many other related procedures is essential.
For additional assistance understanding and implementing California’s overtime rules, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
The Devil Is in The Details: Employment Class Action Suits
Contractor Misclassification … Class Action?
Brinker Case Settles for $56 Million
Tim Bowles
April 28, 2017
Effective March 13, 2017, the City of San Jose’sOpportunity to Work Ordinancerequires employers with 36 or more employees to offer additional work hours to existing, qualified part-time employees before hiring new employees, including subcontractors and use of temporary staffing services. The ordinance does not cover employees that are exempt from overtime, nor does it require employers to provide additional hours to employees that would put them into overtime.
Effective March 13, 2017, the City of San Jose’s Opportunity to Work Ordinance requires employers with 36 or more employees to offer additional work hours to existing, qualified part-time employees before hiring new employees, including subcontractors and use of temporary staffing services. The ordinance does not cover employees that are exempt from overtime, nor does it require employers to provide additional hours to employees that would put them into overtime.
Small businesses with 35 or fewer employees are exempt from this ordinance. The number of employees for chain businesses or franchises is determined by counting the total number of part-time and full-time employees for all locations, whether the branches are located in the City of San Jose or not. Employers do not need to offer additional hours that become available at one location to employees at other locations.
According to the City’s Frequently Asked Questions, employers are required to post a notice about this ordinance in English, Spanish, Vietnamese and Cantonese.
Available employee remedies include the right to sue for additional work hours; award of back wages; civil penalties of $50 per day; and reasonable attorneys’ fees and costs.
Additionally, employers must maintain certain records for no less than four years, including documentation of additional work hours offered to existing personnel, and employee work schedules. See the ordinance for more details.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 26, 2017
The City of Los Angeles’Department of Public Works, Bureau of Contract Administrationrecently publishedfrequently asked questions(FAQs) to assist employers in applying itsFair Chance Initiative for Hiring Ordinance(FCIHO) that went into effect January 22, 2017. For more on this ordinance, seeBan the Box in The City of Los Angeles(January, 2017) and“Banning the Box” in Los Angeles(March, 2017).
The City of Los Angeles’ Department of Public Works, Bureau of Contract Administration recently published frequently asked questions (FAQs) to assist employers in applying its Fair Chance Initiative for Hiring Ordinance (FCIHO) that went into effect January 22, 2017. For more on this ordinance, see Ban the Box in The City of Los Angeles (January, 2017) and “Banning the Box” in Los Angeles (March, 2017).
The department’s FAQs include guidance on job applications and advertisements for employment.
For employers that wish to use the same job application within the city of Los Angeles as well as other municipalities, a general disclaimer may be included directly following employment questions regarding an applicant’s criminal history, such as: “Applicants for a position located within a Fair Chance jurisdiction are not to answer this question.” (For a list of such jurisdictions, California and nationwide, current to February, 2017, see Fair-Chance Employment, Ban the Box, National Employment Law Project (NELP) (2017).
Employers must include in advertisements for employment in the city a statement that they will consider for hiring qualified applicants with a criminal history, for example: “We will consider for employment all qualified applicants, including those with criminal histories, in a manner consistent with the requirements of applicable state and local laws, including the City of Los Angeles’ Fair Chance Initiative for Hiring Ordinance.”
Companies employing workers in L.A. should review the entire ordinance and the FAQs for all requirements under this new law.
For additional assistance understanding and implementing the City’s FCIHO, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 20, 2017
California’s Occupational Safety & Health Standards Board (OSHSB) created heat illness prevention regulations for outdoor workers in 2015. SeeNew Heat Illness Prevention Measures Now in Place.
California’s Occupational Safety & Health Standards Board (OSHSB) created heat illness prevention regulations for outdoor workers in 2015. See New Heat Illness Prevention Measures Now in Place.
Those regulations require specific protective measures for outdoor work, including provision of free, fresh, and “suitably cool” drinking water, access provided to shady rest areas when temperature is over 80 degrees F, monitoring of preventative cool-down, additional high-heat (over 95 degrees F) procedures, and training. See Heat Illness Prevention Amendments Are Likely to Take Effect May 1, 2015. Cal/OSHA (California Division on Occupational Safety and Health) later took measures to increase enforcement of these preventative measures. See Cal/OSHA Increases Enforcement.
In 2016, the Legislature passed SB 1167 requiring OSHSB to propose – by January 1, 2019 – a comparable set of regulations to “minimize[…] heat-related illness and injury among workers” who work indoors. The OSHSB may choose to limit the proposal to certain industries or not. While the Legislature provided no guidelines for regulation content, presumably the OSHSB will propose protections similar to outdoor settings.
Whether these new regulations are actually needed is debatable. The National Federation of Independent Business/California contends:
“This bill is unnecessary because current regulations require employers to identify and address workplace hazards, including the risk of heat illness in indoor workplaces. If in fact indoor heat illness prevention presents a hazard which is not being adequately addressed, Cal/OSHA has other methods with which to effect compliance with current regulations.” See NFIB Reacts to Governor Brown Signing SB 1167.
Whatever the new standards, it is safe to assume Cal/OSHA will begin enforcing them as soon as they take effect in 2019. In any event, employers in industries with high-heat indoor environments should regularly review their safety measures to ensure they adequately prevent heat illness.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
April 11, 2017
In November 2016, California voters approved The Adult Use of Marijuana Act, also known as Proposition 64 (California Health and Safety Code [HSC] sections 11357-11362.9) which allows adults 21 years of age or older to possess and use marijuana for recreational purposes.
In November 2016, California voters approved The Adult Use of Marijuana Act, also known as Proposition 64 (California Health and Safety Code [HSC] sections 11357-11362.9) which allows adults 21 years of age or older to possess and use marijuana for recreational purposes.
Fortunately, Proposition 64 does not alter the rights of California employers to maintain a drug and alcohol free workplace, nor does it require an employer to permit or accommodate the use of marijuana in the workplace. [HSC section 11362.45(f)]
Additionally, both medicinal and recreational marijuana remain a Schedule 1 controlled substance under federal law. Thus, employers may refuse to hire applicants and may terminate existing employees who test positive for marijuana.
Employers should have a drug-free workplace policy that specifically bans the use, purchase/sale, control, distribution, possession of, impairment by, or being under or arriving to work under the influence of recreational and medicinal marijuana, clearly states the circumstances in which the company will require drug testing (including testing for marijuana), and includes disciplinary actions that will be taken for violations of the policy.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 7, 2017