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Closing the Wage Gap – What Employers and Women Can Do Now

On April 15, the U.S. House of Representatives passed the Paycheck Fairness Act (H.R.7). If it becomes law, this legislation will require employers to prove that pay disparities between men and women are job-related. It would also prohibit employers from screening job applicants based on their salary history or asking about their previous salary during the hiring process. Additionally, it would prohibit employers from retaliating against workers who discuss their pay with other employees.

Passing in the House is an important first step to narrow the wage gap nationally. In California, where Connect to HR is located, the state passed two measures that strengthen California’s commitment to achieving gender pay equity. When California passed the Equal Pay Act in 1949, it was considered a pioneering piece of legislation meant to address pay inequity. A few years ago, the state passed The California Fair Pay Act which went into effect on January 1, 2016. The purpose of this law was to help eliminate the longstanding loopholes around pay equity and move toward eliminating the gender wage gap.

Although at both the state and Federal level there is current or pending legislation to create more pay equity, employers do not need to wait any longer before taking action to support female employees.

Here are some things you can do:

Implement parent-friendly policies with access to paid sick days and paid family leave that go above and beyond what the state mandates. Often women are punished for taking time off to care for their child or family members.
Consider job applicants’ experience and value to the organization when setting compensation rather than basing it on salary history. In California, salary can’t be your only basis for making hiring decisions.
Eliminate the employment gap penalty that often results in women being paid less than their worth. Take into account and give credit to non-professional experiences that an applicant has that can translate into the workforce, e.g., running volunteer events, holding leadership roles on the PTA, budgeting, etc.
Initiate an annual compensation review and make adjustments to achieve pay equity.
Promote more women to leadership positions.

Women: you can also help yourself by being more vocal about the value you provide and by advocating with your employer for equal pay. I heard a really good example of this recently during a forum I participated in on professional women returning to work.

The closing speaker, Raylene Nisbet, told us how she returned to the workforce after being out of it for more than 10 years. Prior to her interview, she did some research on the salary range of the job she was applying for. She got the job, but at a salary she knew was in the mid to lower range of the scale for that job. She accepted that salary because it offered her an entry back into the workforce. She justified it based on her employment gap. This is a typical situation for women who have been out of the workforce.

After only a few months on the job, Raylene had already demonstrated her value by her personal results and the results of other team members, whom she was coaching and mentoring. She went back to her boss – with data – and asked for and received an increase in pay to where she should have been in the first place!

So, women:

Do your research – know what the job should pay
Recognize and articulate your value
Keep track of your accomplishments
Consider hiring a coach, finding a mentor or sponsor for support
Prepare your case and have the conversation!

If you would like to learn more about this very important topic, plan to join me at a legal seminar where we will discuss pay equity from both a legal and HR perspective. The law firm of McManis Faulkner will host the seminar on May 19, 2021. I will be co-presenting with my colleague, Michael Warren, who leads the firm’s labor and employment litigation and compliance practice.

Additional information and how to register for the seminar will be announced soon. In the meantime, please save the date.

New Connect to HR Resource for Employers

In any given week, business owners carry out multiple employment related activities that they must be sure are compliant with current federal and state law, and relevant local ordinances. Hiring and firing. Approving leaves of absence. Displaying the most recent employment posters.

Keeping up with evolving rules and regulations is challenging in normal times, and even more so during our current health crisis. So where can employers go to quickly find the information they need?

Connect to HR is happy to announce a new resource for employers on our website. Our Employer Resource Page provides links to credible sources for information about federal and state laws relating to employment compliance, wage and hour requirements, family medical leave, workplace safety and much more.

Feeling overwhelmed or confused trying to navigate the flood of information about benefit changes related to COVID-19? We also have a section with links to sources for the latest information about the crisis and related requirements for employers. We’ve also included links to sources for financial relief for small businesses.

Additional resources include links to local law firms and the Society of Human Resources Management (SHRM) who also provide COVID-19 related information.

This page is meant to be a “living” resource so we will be updating it with additional topics and information. Please feel free to contact me at michelle@connecttohr if there’s a particular topic or resource you’d like to see included.

And check back often. We’ll soon be including a section with links to articles, podcasts and other resources related to growing as a leader.

“Leadership and learning are indispensable to each other.” – John F Kennedy

Access our Employer Resources page at: https://connecttohr.com/employer-resources/

Emergency Paid Sick Leave and Emergency FMLA – What You Need to Know

The Families First Coronavirus Response Act (FFCRA), effective as of April 1, 2020, sets forth new requirements for employers regarding sick leave and family medical leave related to coronavirus (COVID-19). Here are the highlights of what you need to know and need to do as well as some links to more information.

Who is affected by the FFCRA?

All employers with 500 or fewer employees, both for-profit and nonprofit businesses.

What does it require?

FFCRA requires that covered employers provide to employees the following.

Emergency paid sick leave:

Two weeks (up to 80 hours) paid sick leave at the employee’s regular rate of pay when the employee is unable to work due to COVID -19 because the employee is
- Subject to Federal, State, or local quarantined or isolation order;
- Advised by a health care provider to self-quarantine, and/or
- Experiencing COVID-19 symptoms and seeking medical diagnosis.

Note: The regulations interpret “quarantine or isolation orders” to include “a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” That being said, if a business closes because of a shelter in place order, either because its customers are required to stay at home or because the order forced the business to close, and the employee cannot telework, the employee is not eligible for paid sick leave under the Act (because the reason the employee cannot work is because the business was subject to the order, not because the employee was subject to the order).

Two weeks (up to 80 hours) paid sick leave at two-thirds the employee’s regular rate of pay when an individual has been employed at least 30 days and is unable to work because of a
- Bona fide need to care for a quarantined individual, or
- Care for a child (under 18) whose school is closed, or childcare provider is closed/unavailable due to COVID-19, or
- Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Note: Part-time employees are eligible for the number of hours of leave that the employee works on average over a two-week period.

Expanded family and medical leave:

Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay when an employee is unable to work because of a
- Bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable because of COVID-19.

Note: The expanded family and medical leave can be used intermittently between April 1, and December 31, 2020. For example, if employee does not have childcare for two of the five days of work, they can use the leave for those two days until the 10 weeks is used up or December 31, whichever comes first.

New posting required

All covered employers must post/provide to employees a Notice of FFCRA Requirements as follows:

Employers who are still open should print out the notice and post with other required notices. Another option is to provide individual copies to employees.
Employers with staff working remotely may email the notice to all employees to meet the requirement.

Employee documentation required

FFCRA stipulates that employers must require that employees provide documentation in support of emergency paid sick leave, including:

Employee name
Qualifying reason for leave
Statement that the employee is unable to work, including remotely, for that reason
Dates of requested leave
Documentation of reason for leave, such as
- Quarantine or isolation order
- Name of health care provider advising employee to self-quarantine
- Website post/email notice of school or childcare provider closure

For more information be sure to visit the following websites:

Employer Paid Leave Requirements (Department of Labor): https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave#_ftn7

FFCRA Q & A (Department of Labor):
https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Federal laws may run concurrent with CA laws

California employers should keep in mind that state and local laws (city or county) related to sick leave and family leave may differ from federal law. Be sure you are complying with laws pertinent to your location and/or where you have employees as some of these laws run concurrently in certain circumstances.

Tax credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. Find out more information here. For the most current information about the loan programs, visit the SBA coronavirus webpage, or go directly to the SBA loan application page. The Paycheck Protection Program (PPP) loans will also be available through most major banks in the coming weeks.

I am in the process of putting together additional resources to help you during this crisis. Stay tuned, and please feel free to reach out if you have questions.

Protecting Your Employees and Your Business During COVID-19

As the coronavirus pandemic (as officially declared by the World Health Organization) occupies our daily news feed, many business owners, non-profits and corporations are scrambling to figure out exactly what to do. In the case of small businesses or non-profits they may not have the luxury of telling their employees to work remotely for the next three weeks. On the other hand, they know that the health and safety of their employees is a top priority.

This blog is a summary of steps you may need to take to stay in compliance with employment law, protect your employees, and protect your business. This is an evolving situation, so we suggest checking the official websites we list below to stay informed of any recent updates.

Stay informed and educate employees

Refer to the CDC (Center for Disease Control and Prevention), World Health Organization and OSHA for the latest information and guidance about the Coronavirus (COVID-19). Certain county and states have taken additional steps to secure public safety. Please check your local health department websites for specific regional information.
Educate employees on what is known about the virus and how to prevent the spread of illness.
Implement a communicable illness policy and response plan that may allow for flexible work and telecommuting, minimizing exposure between employees and with the public, and postponing or canceling large meetings or events.
Follow the CDC guidance on dealing with COVID-19 by actively encouraging sick employees to stay home. If an employee has acute respiratory illness symptoms, send them home immediately. It’s also important to provide information and training to employees on: cough and sneeze etiquette; proper hand hygiene (wash for at least 20 seconds); avoiding close contact with sick people; keeping hands away from their face; not sharing personal items with coworkers; using a tissue to open doors; and sanitizing workspaces. Also, provide hand sanitizer.

Review your sick leave policy especially if your business is either located in California or has employees working remotely in California

Allow employees to use paid sick leave for COVID-19 related illnesses. However, under California law and in other jurisdictions, you cannot require quarantined workers to exhaust their paid sick leave.
Do not punish employees for using paid sick leave or for taking time off to care for a sick family member.
Make other paid leave available if sick leave is exhausted.
Consult local paid-sick-leave laws that may be more generous than the statewide law.

Inform employees of additional leave/benefits that may be available

Employees with serious conditions stemming from COVID-19 might be covered by The Family and Medical Leave Act (FMLA) or The Americans with Disabilities Act (ADA). In California it’s important to keep in mind the California Family Rights Act (CFRA) and the California Fair Employment and Housing Act (FEHA). It’s important to consult your employment counsel as to whether any of these apply to an employee’s situation.

Employees who are unable to work due to COVID-19 exposure may be able to file a disability insurance claim with the EDD (Employment Development Department). In CA, the EDD website has timely and important information on how employees can apply for unemployment insurance or disability coverage. Here’s the link to the CA EDD website: https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

Bear in mind that although the EDD requires a physician’s certification, in the current environment medical professionals may be overwhelmed and unable to provide that certification in a timely manner. Allow some flexibility in the turnaround time for those certifications. Workers may also be eligible for unemployment insurance benefits if their work hours have been reduced by their employer or the company has temporarily shut down.

Along with health, safety and compliance issues, if you decide to offer telecommuting or require employees to work at a location other than their typical work situation, please be sure to review your company policies before making the change. Also, be sure to keep in mind that you may have to consider wage and hour issues for non-exempt employees as it relates to reporting pay, travel pay and reporting time.

Most of all, remember that employers are responsible for maintaining a safe and healthy work environment for their employees.

This topic is top of mind for many individuals. I suggest being proactive and letting employees know that as a company you are aware of the issues and you have a plan. If you need assistance, please reach out to me.

Stay well!

New Employment Laws for 2020

California has enacted a number of new laws for 2020. Becoming familiar with them will help you stay in compliance and avoid costly penalties. Also, be sure to update your Employee Handbook to reflect the new legislation.

California has enacted a statute, AB5, effective as of last month, that makes it much more difficult to classify workers as independent contractors.

AB5 applies a strict “ABC test” to determine whether a worker is an employee or independent contractor, and puts the burden of proof on the employer. In order to be classified as an independent contract, the worker must meet each of the following:

(A) The worker is free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact; AND
(B) The worker performs work that is outside the usual course of the hiring entity’s business; AND
(C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

There are some exemptions including doctors, dentists, insurance agents, lawyers, accountants, real estate agents, hairstylists, and a variety of creative professionals. AB5 also exempts business-to-business contractors subject to a 12-factor test.

Misclassification can be extremely costly for employers in legal fees, back wages and benefits, and penalties. Now is an ideal time to do an overall review of how you’ve classified your workers. Also, it’s important to consult with an employment attorney if you plan to audit your records and reclassify your contractors.

SB142 – Lactation Accommodation – requires that all employers provide a safe, private and clean lactation room that is not a bathroom. The room must have access to a power supply for breast pumps, and a sink and refrigerator that are close to the employee’s workspace. Additionally, employers must provide reasonable rest breaks to express milk. They must also develop and distribute a policy. Employers may not discharge, discriminate or retaliate against an employee for exercising rights under the law. If an employer denies reasonable breaks or adequate space to express milk, they will suffer the penalty of an additional one hour of pay for each day there is a violation. Employers with fewer than 50 employees may seek an exemption from the requirement.

SB188 – The Create a Respectful and Open Workplace for Natural Hair Act (CROWN Act) – protects employees from racial discrimination based on hairstyle. The law clarifies the definition of race for the workplace and educational institutions to include, but not limited to, hair texture and protective hairstyles, and defines protective hairstyles.

Other changes of note:

The federal minimum salary threshold for exempt employees was increased as of January 1. Note that California employers must comply with the state’s higher thresholds for their employees working in the state. For employers with at least 26 employees, the minimum annual salary for a managerial, administrative, or professional employee in California to be classified as exempt is $54,080 ($49,920 for employers with 25 or fewer employees).

California increased its minimum wage as of January 1 to $12/hour for employers with 25 employees or fewer and $13/hour for employers with 26 employees or more. Several cities within the state also increased their minimum wage. Be sure you are paying employees based on the minimum wage in the city where they work or in the state of California, whichever is higher.

Here’s a reference regarding California minimum wage increments to keep handy: https://www.dir.ca.gov/dlse/faq_minimumwage.htm

The deadline for harassment prevention training has been extended to January 1, 2021 for most California employees.

Thinking of Hiring Employees? Start with a Strong Foundation

One of the things that I think has helped my business grow and thrive for the past 10 years is that I spent significant time at the beginning building a strong foundation.

As I mentioned last time, I went to a SCORE workshop to learn about the requirements (and challenges) of running a small business. I also made sure that I put the proper systems in place to manage my finances, do required reporting, etc. I invested in getting a basic website up and developing quality marketing materials to create Connect to HR awareness. I researched and joined relevant networking groups to build business connections.

Starting and maintaining a strong foundation will help see you through the good times and the challenging ones.

If you have or plan to have employees, there are additional foundational steps you need to take. Here are some key foundational HR items you need to address.

Effective hiring. As you identify the need to hire employees, be sure that you have developed a workforce plan that clearly defines job roles and requirements. Check out my previous blog about effective workforce planning for some tips. Don’t forget, in California there are required notices and forms that employers must provide new hires. Connect to HR offers a new hire tool kit that makes it easy for companies to understand their compliance requirements in the new hire process.

Job descriptions. Detailed and up-to-date job descriptions will help you recruit the right talent and assess their performance. They are also key in ensuring that you are legally compliant. A detailed job description not only protects you when you terminate an employee for non-performance, it also ensures that you comply with the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA) and other legal requirements.

Goals and objectives. Setting and communicating clear goals and objectives for employees (that are tied to company goals) will help reduce performance issues and keep employees engaged. Goals are a great tool to help monitor performance with clear standards. We suggest you review them with employees monthly, at a minimum, to ensure they are still relevant over time.

Labor law posters. Be sure you post all the required federal and state employment posters and have a system in place for managing your HR records. These posters are required for all businesses with two or more employees.

Employee Handbook. It’s important to have an Employee Handbook that includes basic employment policies as well as policies specific to your company. You can avoid employee and legal issues if you clearly communicate expectations about work hours, conduct, etc.

Health and safety. Company management is responsible for creating and maintaining a safe and healthy work environment. In California, all employers should have an Injury Illness and Prevention Program (IIPP).

Terminations. Just as it’s important to have an effective hiring process, it’s important that you have an effective (and legally compliant) process for terminating employees. Creating and following a Termination Checklist will help ensure that you cover all the bases. Terminating an employee is never easy, but putting some structure around it can make it less stressful for both you and the employee.

Please reach out to me at michelle@connecttohr.com if you need guidance on any of these items.

Time to Review Your HR Year-End Checklist

There are just a few weeks left until the holidays and year end. Before you get caught up in all the festivities, it’s a good idea to set aside some time to make sure you have addressed any outstanding HR issues for 2019, and have finalized your plans for 2020 and the new decade.

Be sure you have made the appropriate adjustments to comply with recent legislation, specifically:

The deadline for harassment prevention training has been extended to January 1, 2021 for most California employees.

California has enacted a statute that makes it much more difficult to classify workers as independent contractors, effective January 1, 2020.

The federal minimum salary threshold for exempt employees is being increased, effective January 1, 2020.

California is increasing its minimum wage again as of January 1, 2020. Several cities within the state also are increasing their minimum wage.

Here’s a checklist of other items to complete before year end. Be sure to add any items relative to your particular business that you don’t see here.

Order any updated Federal and State Labor Law Posters
Review your Employee Handbook to identify any changes needed based on 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 2020
Finalize focal process for 2020
Finalize company goals
Determine dates of company holidays for 2020
Finalize and announce any new benefits/employee perks for 2020
Renew any annual memberships and subscriptions
Schedule annual reviews with employees
Deal with any lingering employee relations issues

In addition, think back over the year and reflect on what went well and what didn’t go well from an HR standpoint. Are your employees engaged and productive? If not, do you see any trends that you could work on turning around in 2020? Are there any employees who stand out as particularly high potential? How will you develop and retain them in 2020?

This is also a good time to look back over the past decade. Reflect on how your organization has changed and celebrate your accomplishments over the past decade. Also, consider what you want to usher into the next 10 years. If you don’t know where to start, consider conducting a SWOT analysis in the New Year. This way, you can become aware of trends both inside the company as well as in your industry.

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 2020 off to a good start!

I would love the opportunity to help you plan for 2020 and the next decade please contact me at michelle@connecttohr.com.

Accelerate Your Business Through a SWOT Analysis

As we approach the end of the year, it’s a good idea to set aside some time to reflect on your business and prepare for what’s next. What is going well? What needs to change? What are the company’s strengths and what are the opportunities for improvement?

I’m working through this process with one of my clients. They have grown significantly over the past three years, more than doubling the number of employees. They are looking at adding some new business offerings and want to make sure that they have the right administrative functions, skills and organization in place to support them.

To determine this, we’re using a simple but powerful tool called a SWOT analysis. “SWOT” stands for Strengths, Weaknesses, Opportunities and Threats. By taking an objective look at each of these areas as they pertain to the company, we can identify any gaps and then strategize how to fill in those gaps.

The Strengths and Weaknesses components require looking inward – evaluating things you have control over and can change. For example, your processes, location, team. The Opportunities and Threats components require looking outward – external forces you may not be able to control, such as competitors, customer buying trends, new regulations.

Key to an effective SWOT analysis are good questions and honest, well thought out answers. Here are some examples of questions.

Strengths:

Which of our processes are working effectively?
What are the strengths of our team, e.g., experience, knowledge, level of education, skills, network or reputation?
What are our tangible assets, e.g., customers, technology, equipment, capital, or patents?
What is our competitive advantage?

Weaknesses:

Which of our processes are not working?
Are there skill, knowledge or experience gaps on the team?
What assets are we lacking, e.g., capital, equipment, up-to-date technology?
Is there something within our control that is holding us back from being competitive?

Opportunities:

Are there recent changes in the market that could create an opportunity?
Is the timing critical to take advantage of that opportunity?
What events are coming up that we could leverage to grow the business?
Are there any impending changes to regulations that could work in our favor?

Threats:

Who are our current and potential competitors? What are their strengths?
Is there potential for a significant change in prices or availability of key suppliers?
Are there shifts in customer buying trends or the economy that could impact revenue or profits?
What other factors beyond our control could put the company at risk?

Of course, you’d want to add more questions that are specific to your business. Understanding your company’s strengths, weaknesses, opportunities and threats will help you make informed decisions about what you need to do to take your business to the next level.

Next time we’ll talk about some specific things to do and not do in your SWOT analysis.

Please contact me if you need help in going through the process.

New Federal Salary Threshold for Exempt Classification

As of January 1, 2020, the federal salary threshold for employees to qualify as exempt from overtime will increase from $455 per week ($23,660 per year) to $684 per week ($35,568 per year). For employees to qualify under the Fair Labor Standards Act’s (FLSA) “highly compensated employee” exemption, the minimum salary threshold will increase to $107,432 per year.

As a reminder, for an employee to be classified as exempt, they must meet both the minimum salary requirement and the “duties test.” This new law does not make any changes to the duties test.

It also does not affect employees in California, where the exempt salary threshold is higher.

California employers must comply with the higher thresholds for their employees working in the state. The minimum annual salary for a managerial, administrative, or professional employee in California to be classified as exempt is $49,920 ($45,760 for employers with 25 or fewer employees). Also, California does not recognize the “highly compensated employee” exemption.

Another difference is that the federal law allows for bonuses, commissions and incentives that are paid at least annually to be counted toward the minimum salary requirement. California makes no such provision. And California’s duties test is stricter than the duties test under federal law. Here, an employee must spend more than 50% of their time in each workweek performing exempt duties to qualify as exempt from overtime.

If you have employees outside of California now is the time to review your compensation plans for exempt employees and make any changes needed to comply with the new federal law by January 1.

If you only have employees in California, it’s also a good time to review employee compensation and classification to ensure you are complying with California law.

Please reach out to me at michelle@connecttohr.com if you need help reviewing employee classifications.

New Law Impacts California Independent Consultants

As we head into the fourth quarter of 2019, there are a couple of legal updates you should be aware of.

First, Governor Newsom has signed into law AB 5, which further clarifies the distinction between employees and independent contractors. The law goes into effect on January 1, 2020 and is expected to have a big impact on gig-economy companies like Lyft and Uber, as well as app-based services that depend on contractors such as food delivery and dog-walking services.

Second, the deadline for harassment prevention training (now required for all employees of companies with 5 or more employees including independent contractors) has been extended to January 1, 2021. This will allow more time for large employers who previously only trained supervisors to train their other employees and for smaller companies to train both supervisors and employees. As a reminder, training for supervisors must be at least two hours, and training for non-supervisors must be at least one hour. Training must be repeated at least every two years. Remember to keep records of training for both employees and supervisors.

AB 5 adopts the “ABC” test, which I wrote about earlier this year, to determine whether an individual is an employee or an independent contractor.

Under the ABC Test, in order to classify a worker as an independent contractor the hiring entity must establish that the worker meets EACH of the following three factors:

The worker is free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact; AND
The worker performs work that is outside the usual course of the hiring entity’s business; AND
The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

One of the things I tell clients is that it’s essential to consider how you define your core business (2) and how does the worker assist you in that core business.

The new law allows for a few exceptions for positions that are subject to the 9-factor Borello test. Some examples of positions that fit into this category are: insurance brokers, physicians and surgeons, hairstylists, attorneys, and accountants.

Please feel free to contact me at michelle@connecttohr.com if you need assistance.