New Protections for Victims of Crime, Domestic Abuse & Stalking
In our continuing series on new and revised California employment laws, here are two revisions that extend 
protections for victims of crime, domestic abuse and stalking.
SB288 currently prohibits an employer from discharging or discriminating against an employee who takes time off to serve on a jury; an employee who is a victim of a crime for taking time off to appear in court as a witness; or an employee who is a victim of domestic violence or sexual assault to obtain or attempt to obtain prescribed relief. A new provision in the law allows crime victims to take time off from work for court appearances in which their rights are at issue. This law applies to specific crimes only, and affected employees must request leave in compliance with company policy.
SB 400 has been amended to provide stalking victims with the same protections now provided for victims of domestic violence and sexual assault, including time off to appear at legal proceedings. All employers must provide time off to covered victims for court appearances. Employers with 25 or more employees must provide victims with time off to seek medical/psychological treatment, including safety planning.
Additionally, SB 400 now requires that employers provide reasonable accommodation for victims of domestic violence, sexual assault and stalking, which may include implementation of safety measures.
Please be sure to update your Leave of Absence and Time Off policies accordingly.
New Laws in 2014: Piece Rate Workers and Computer Professionals
In my last blog we talked about the new minimum wage for the state of California and for the cities of San Francisco and San Jose. 
Another ruling related to wages has to do with compensation for piece rate employees. If you employ piece rate workers, you must pay them at the piece rate for all piece rate work, and at a rate that is at least at the minimum wage for each hour of non-piece rate work. This means it’s not enough to average the piece rate and non-piece rate over total hours worked for the pay period and then make up the difference only where the total falls below the minimum wage.
Also, for 2014 the minimum annual salary required in California for a Computer Professional to be exempt from overtime pay is $84,130.53. This calculates to $40.38 per hour (up from the previous rate of $39.90) and $7,010.88 per month (up from $6,927.75). Besides meeting pay requirements, a stringent duties test must also be satisfied to meet the Computer Professional exemption. For example, regardless of pay, the exemption does not apply to entry-level computer software professionals and employees who do not work independently without close supervision.
Recommendations: The new piece rate laws require California employers to keep accurate time records. This means accurate tracking is required on your part. The Computer Professional guideline is a reminder to conduct a review of jobs that may be considered under the exemption. Be sure to conduct the review under attorney-client privilege.
New Laws 2014: Minimum Wage Changes
There are a number of new employment-related laws going into effect in 2014. 
I’ll be summarizing those for you in my next few blogs. Let’s start with minimum wage changes.
AB 10 raises the minimum wage in California from $8/hour to $9/hour effective July 1, 2014. The minimum wage will bump up another dollar in 2016 when it goes up to $10/hour effective January 1, 2016. The law also requires California employers to pay non-exempt employees one and one-half times their regular rate of pay for: (1) hours worked in excess of 8 in one day; and, (2) the first 8 hours worked on the 7th consecutive day of work in any one workweek; and two times their regular rate of pay for: (1) hours worked in excess of 12 in one day; and, (2) hours worked in excess of 8 hours on the 7th consecutive of work in a work week.
Another law – AB 442 – increases the penalty for employers who fail to pay minimum wage. Now, in addition to existing penalties, employers cited by the Labor Commissioner for failing to pay minimum wage will be required to pay liquidated damages to the affected employee.
In the city of San Jose, minimum wage increased from $10/hour to $10.15/hour, effective January 1 this year. Also effective January 1, 2014, minimum wage in the City and County of San Francisco increased from $10.55/hour to $10.74/hour. The cities of Los Angeles and San Diego have not passed ordinances to increase the minimum wage above California’s state-wide requirements.
To avoid penalties, be sure you are complying with these new minimum wage rulings. Watch for my next blog for more information about new laws in 2014.
In the Holiday Rush, Don’t Forget to Complete Your HR Year-End Checklist
Believe it or not, 2013 is nearly over. Before you take off for the holidays, be sure you have reviewed and completed those HR items you need to finish before year end. Here’s a checklist for you:
- Order any updated Federal and State Labor Law Posters.
- Review your employee handbook to identify where changes are needed to reflect new laws, policies and/or procedures.
- Review and update employee addresses in preparation for W-2 distribution.
- Review and update job descriptions.
- Finalize the HR Budget for 2014.
- Schedule implementation of Employee Survey suggestions.
- Determine dates of company holidays for 2014.
- Renew any annual memberships and subscriptions.
- Check stock on basic forms and reorder as necessary.
- Deal with any lingering employee relations issues.
In addition to taking care of these items, take the opportunity to look back over the year and assess – from a people standpoint – what went well and what didn’t go so well. Are your employees engaged and productive? If not, do you see any trends that you could work on turning around in 2014? Are there any employees who stand out as particularly high potential? How will you develop and retain them in 2014?
Giving some thought to these things now, and then putting a plan in place to address them after the first of the year will get 2014 off to a good start!
If you do not have an Employee Handbook or haven’t updated yours in awhile, or need help updating job descriptions, contact me at Connect to HR, LLC at michelle@connecttohr.com.
Helping Hands in this Season of Giving
In my last blog I wrote about the benefits that community service provides to teams, individuals and corporations, as well as to the organizations served. Now it’s time to start planning how you and your team are going to be “helping hands” to those in need this year. Here are a few organizations that have a strong tradition of helping the local community, plus opportunities for both monetary contributions and volunteer work.
Second Harvest Food Bank needs help packing and sorting the food it collects and provides to people in need in the community. This makes a great team event. Your employees may also want to help with food distribution.
You can also help Second Harvest by setting up a food drive at your office. This year some major corporations are promising additional donations when certain targets are met in the food drive campaign.
Another great team activity is volunteering at the Family Giving Tree warehouse. Volunteers may help in gift receiving or sorting, gift wrapping, quality check, gift distribution or warehouse clean up.
Your company can also help by participating in the Family Giving Tree’s Holiday Wish Drive. You display “wish cards” in your lobby and other public areas. Each wish card describes an age appropriate gift for a child in need. Employees select the wish cards and pledge to provide the new, unwrapped gift by the due date. Gifts this year are due at the warehouse by Tuesday, December 10.
Family Support Services has many families who are in need of basics – warm clothes, shoes, etc. Family Support Services of the Bay Area will provide a list of needs for each family member plus some suggested “dream wish” ideas.
Additional group volunteer ideas are available at Volunteer San Jose.
Also, please don’t forget the many people in the Philippines affected by Typhoon Haiyan. Financial donations to the American Red Cross will help them provide shelter, food, emotional support and other assistance to those in need, many of whom have lost everything.
Team Building Through Community Service
Group dinners and ping pong tournaments have their place in developing team camaraderie and cohesion. And there are many, more elaborate (and costly) activities available to challenge team strength and build intra-team trust. In this season of giving, however, consider the benefits of team activities that contribute to your external community, while at the same time building a sense of purpose, cooperation and fun within the team.
In a 2010 study by United Healthcare and Volunteer Match, 81% of respondents said that volunteering with work colleagues strengthened their relationships, and 76% said they felt better about their employer because of their volunteer activities. The study also indicated that volunteering improved individuals’ sense of well-being and purpose.
Team community service also provides an opportunity to develop the skills of individual team members. Put someone who is not in a leadership role in charge of the event. Put someone else in charge of communications. Build collaboration by letting the team research and decide on the organization they will help. These skills will then translate back to the job and result in a higher performing team.
Research shows that companies who give back to their communities have better brand visibility, more highly-engaged employees and stronger relationships with their customers. With more than 60% of employees reporting that they are not engaged at work, providing opportunities to contribute in meaningful ways as a team outside of work may help them view the organization with new eyes and enthusiasm.
Next time we’ll talk about some specific local opportunities for team volunteering.
“The highest of distinctions is service to others.” – King George IV
“The greatest leader is not necessarily the one who does the greatest things. He is the one that gets the people to do the greatest things.” – Ronald Reagan
Using Independent Contractors? Read This First!
Earlier this year California became the 12th state to enter into a Memorandum of Understanding (MOU) with the Department of Labor’s Wage and Hour Division, signifying that they will be working together to end the practice of misclassifying employees. In 2011, the Wage and Hour Division collected more than $5 million in back wages for minimum wage and overtime violations under FLSA (Fair Labor Standards Act) resulting from employees being misclassified as independent contractors, or otherwise not treated as employees.
Last year California passed Senate Bill 459 which imposes penalties of from $5,000-$25,000 for “willful misclassification” of an employee as an independent contractor. These fines are in addition to any employment taxes and insurance found owing.
Before you classify an individual as an “independent contractor” be sure you review the various resources available to avoid misclassification and the resulting costs and fines of doing so. California’s Employee Development Department’s (EDD) Employment Determination Guide provides a Worksheet on Employment Status that includes a battery of questions that will help you determine classification. The IRS uses 20 factors to evaluate the validity of independent contractor classifications:
- Level of instruction
- Amount of training
- Degree of business integration
- Extent of personal services
- Control of assistants
- Continuity of relationship
- Flexibility of schedule
- Demands for full-time work
- Need for on-site services
- Sequence of work
- requirements for reports
- Method of payment
- Payment of business or travel expenses
- Provision of tools and materials
- Investment in facilities
- Realization of profile or loss
- Work for multiple companies
- Availability to public
- Control over discharge
- Right of termination
More information about each of these factors is in the IRS publication. As always, consult with your tax advisor or an employment attorney for specific questions about classifications.
Informing Your Employees about Health Care Exchanges
As part of the Affordable Care Act, employers are required to provide information to all current and newly hired employees about the availability of health care exchanges. This ruling went into effect October1. The Department of Labor has created two model notices for this purpose, one for employers who provide health insurance coverage for their employees, and one for employers who do not provide coverage.
Notices must include basic information about the available Exchange (in California it is Covered California) a description of the services available, Exchange contact information, notice of whether the employee will lose their employer contribution to company-provided coverage by using the Exchange, and any tax implications.
Covered California has six health insurance companies available for enrollment, and offers a “shop and compare” tool as well as a schedule of education and enrollment events throughout the state. Covered California also offers an online marketplace – Small Business Health Options Program (SHOP) – for employers with 1-50 eligible employees who want to offer health insurance as a benefit.
Although the mandate for employers with more than 50 fulltime employees has been delayed until January, 2015, it’s a good idea to start planning now for how you will meet the requirement and thereby avoid fines.
Providing healthcare coverage is one of the best ways to attract and retain top talent.
The Cost of Misclassifying an Employee as an Independent Contractor
Many employers use independent contractors to supplement staff for a temporary increase in workload or to provide a missing skill set for a special project. If the person is truly an independent contractor it can make good business sense. If, on the other hand, the nature of the person’s work or how they work does not meet the independent contractor criteria, it can be a very costly business decision.
Take, for example, a client of mine who hired a contractor to work on a project that was supposed to last approximately 9 months. The individual presented himself as a self-employed contractor with a business name and business cards. A contract for 9 months was written, and signed by both parties. The contractor worked mostly offsite, but was required to come into the office occasionally for meetings. When he was in the office, he used the company computer, and he had a company email account.
About halfway through the project the contractor started missing deadlines. He also missed meetings or would arrive so late that someone else would have to conduct the meeting on his behalf. Finally, management decided to let him go. Here’s where it got sticky. First of all, the contract did not have a severance clause. Secondly, the two parties could not agree on the amount owed to the contractor at the time of termination.
The contractor sought help from the Employee Development Department (EDD), filing for unemployment and also filing a claim that he had been misclassified. The EDD ruled in his favor and the company ended up paying more than $50,000 in back wages and legal fees.
There are two key lessons here: 1) Be sure your contracts are reviewed by an attorney and clearly state the requirements and obligations upon termination. 2) There are a number of factors that determine whether a worker is an independent contractor or an employee. Don’t assume that because the person uses their own equipment and has their own business name that they can be classified as an independent contractor. Become familiar with the classification criteria and consult an HR Professional or employment attorney if you have questions.
Next time we’ll talk about 20 factors you can use to help determine whether a worker is an independent contractor.
When an Employee Leaves: The Termination Checklist
When you terminate an employee – or they leave voluntarily – there are a number of activities you need to complete to ensure a smooth and legal transition for both the company and departing employee. These activities should be part of your standard employee processes. It’s a good idea to have a formal checklist that you use routinely so you don’t forget anything.
In addition to completing the checklist, it’s a best practice to conduct exit interviews with terminating employees. Candid feedback, especially from good employees who are leaving, may help you determine changes needed to retain top talent going forward.
If you are terminating an employee for performance issues, be sure you have written documentation describing the issue, the steps taken to resolve it and the results. Even though California is an “at-will” state, detailed documentation is your best defense if a legal action transpires. When in doubt, speak with a California employment attorney.
Remove exiting employees’ access to email, the network, the company intranet and any other programs or proprietary information meant solely for the use of employees. Be sure to collect any company-owned property from them. Also, ensure that you have their most recent address and contact information for W-2s and any other follow up communications. Ask them to contact you if they move prior to year end.
For a complete list of items to include on your Termination Checklist click here.
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