Archive for Legal/ Compliance

Things to Consider When Hiring Outside of California

As “work from anywhere” becomes a more common practice in our new world of work, many organizations are hiring employees who live in other parts of the U.S., or even outside of the U.S.

Since we have the technology for a remote workforce, it shouldn’t matter where they are, right? Wrong!

Here are some of the items you need to consider:

  • Do you need to establish a local business entity? Most states in the U.S. and foreign countries require this. 
  • What is the job market paying in the location where your employee works?  Is it similar or different from your corporate location?  Will you pay a differential if the person works remotely?
  • What about wage and hour laws or meal and rest breaks in the city, state, or country where the employee works?
  • How do you ensure equity in benefits, for example, vacation and holidays? European employees typically receive more vacation than U.S. employees.  How do you handle that?
  • What other benefits are required by the employee’s location? 
  • What about leave laws?  How are parental, medical, and other types of leaves handled?  Canada and many European countries offer up to a year of paid time off for certain leaves.
  • What are the local requirements for laying off or firing an employee? Many European countries require lengthy advance notice for a layoff, for example.

If the majority of your employees are in California, where required benefits may be more generous than in other parts of the U.S., do you offer your employees in other states California benefits? Can you afford to? If not, follow the laws where the work is performed and consider taking small steps to reach equity with your California employees. 

It’s important to note that if a manager is working elsewhere but manages people in California, the California law requiring that managers receive anti-harassment training every two years applies.

Employment laws vary from state to state and certainly from country to country. To be in compliance, you need to follow the laws related to the state or country where your employees are located. It’s important to work with an employment attorney who is familiar with the legal requirements for recruiting, hiring, terminating, paying, and managing employees in that specific area.

2022 CA Supplemental COVID-19 Paid Sick Leave

Governor Newsom has signed into law SB 114 California State Supplemental COVID-19 Paid Sick Leave, which goes into effect February 19, 2022.  The new law applies to employers with 26 or more employees and requires them to provide up to 80 hours of supplemental COVID-related sick pay to employees who are:

  • Attending a COVID-19 vaccine or booster appointment for themselves or a family member
  • Experiencing symptoms or caring for a family member with symptoms
  • Subject to a COVID-19 quarantine or isolation period
  • Caring for a child whose school or place of care is unavailable due to COVID-19

In 2021, California passed a supplement COVID-19 paid sick leave bill that provided similar benefits to employees.  However, these benefits expired on September 31, 2021 and were not replaced with additional leave.  SB114 was a pathway for the California legislature to bring back this benefit due to the recent COVID surge.  Please note, this would be a new allotment for employees.  

The bill covers the period from January 1, 2022 through September 30, 2022. Employees who took COVID-related leave between January 1 and February 19 and were not provided with paid leave may make an oral or written request to their employer for payment.

Employers are required to post a notice about the supplemental paid sick leave. The Labor Commissioner’s Office is currently working on and will make available a poster. Employers are also required to provide employees with written notice of the supplemental paid sick leave that the employee has used in the applicable pay period. Read the full bill here.

Updated Guidelines for Returning to the Office

As I described last month, there are specific health and safety guidelines for companies who are planning to bring their employees back into the office. In this article I provide you with some updates to the Santa Clara County and Cal OSHA guidelines. If you operate your business (or have employees who work) outside of Santa Clara County, please be sure to check your local County Health Department guidelines.

Per the Santa Clara County Public Health Order I wrote about in an article last month, employers must ascertain the vaccination status of all personnel. This includes employees, contractors, volunteers, and anyone who regularly works at worksites in the County. The County provides a self-certification form for this purpose. What has changed since that order is that businesses are no longer required to follow up every 14 days with personnel to determine their status.  Click here for the full text of the updated order.

Cal OSHA also requires that employers document the vaccination status of employees but does not specify a method for doing so. Per their updated order:

The employer must record the vaccination status for any employee not wearing a face covering indoors and this record must be kept confidential. Acceptable options include:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Per State, Cal OSHA ETS and County ordinances employees who are unvaccinated or decline to state whether they are vaccinated must follow these guidelines:

  • Wear a mask when entering the workplace and in common areas such as the breakroom, restroom, or conference rooms. They do not need to wear a mask when meeting outdoors, while eating, while working alone in an office, or while sitting alone in their vehicle.
  • Although face masks are not required outdoors, they are recommended for unvaccinated persons outdoors when six feet of physical distancing cannot be maintained.
  • Masks must be double layered. Face shields, neck gators and valve masks are not permitted.

For a summary of the revised Cal OHSA guidelines, click here. You may also find their revision FAQs helpful.

Disclaimer: Because information and guidelines continue to evolve, it’s essential for leaders to keep an eye out for the latest guidelines from the state, CalOSHA, and the city and county where you have personnel performing work, as defined above. 

Also, if you have questions about your particular situation, it’s always a good idea to seek advice from your legal counsel.

Please reach out to me at michelle@connecttohr.com if you need help creating a return-to-work plan.

New Health Guidelines for Post-COVID Return to Work

If you are a business leader starting to bring employees back into the office, there are some specific Public Health Department guidelines you need to follow. These may vary according to your business location and where your employees actually perform their work. Also, the state, county, city and CalOSHA all have guidelines. If these guidelines differ, the more restrictive ones prevail.

Santa Clara County issued a new health order effective May 19, 2021. If your business is in Santa Clara County or you have employees or volunteers who regularly work at worksites in the County, be sure that you comply with these guidelines. We’ve listed a few of them below. For more information, read the full health order.

  • Employers must require that employees immediately notify them if they test positive for COVID-19 and were present in the workplace within 48 hours prior to the onset of symptoms (or the date when they were tested) or within 10 days after the onset of symptoms (or the date when they were tested if they were asymptomatic).
  • Employers must ascertain the vaccination status of all personnel who perform any work at a facility or worksite in the county within 14 days of this order (by June 1, 2021).  Personnel includes employees, contractors, volunteers, and anyone who regularly works at worksites in the County.
  • Personnel who decline to provide vaccination status are to be treated as unvaccinated. After the initial request, businesses must follow up every 14 days with all personnel who were not fully vaccinated to determine their status.
  • Employers must require unvaccinated personnel to wear masks, maintain the appropriate physical distance, and comply with all other County health guidelines for unvaccinated individuals.
  • Employers are also required to provide unvaccinated personnel with information on how to get vaccinated.
  • All employers must maintain appropriate records to demonstrate compliance. Non-compliance may result in fines of up to $5,000 per violation per day.

Per the County FAQs, compliance with the vaccination/recordkeeping requirement takes just a few steps:

  1. Provide staff members a copy of the one-page Self-Certification form the County has provided to assist businesses in meeting this requirement.  It should take employees no more than a minute or two to fill out the form.
  2. Collect the forms and store them in the same way you store confidential employee information like documents requesting medical leave, reasonable accommodations, etc.
  3. Provide employees who are not vaccinated or declined to state whether they are vaccinated an information sheet on vaccination, which is available here.

Click here for the Santa Clara County Public Health Order FAQs.

If you are based in San Francisco or have employees working in San Francisco, check out these guidelines from the San Francisco Department of Health.

Learn about the State of California guidelines for fully vaccinated individuals here.

CalOSHA is in the process of revising their COVID-19 prevention guidelines (ETS), which may be stricter than those issued by California and the CDC. These will not be finalized until later this month. The revisions include updates to face coverings, physical distancing and other prevention measures for vaccinated and unvaccinated workers. The ETS applies to most workers in California.  We suggest you visit their FAQ which will have more details on the proposed changes once they are approved and adopted later in June.

Disclaimer: Because information and guidelines continue to evolve, it’s essential for leaders to keep an eye out for the latest guidelines from the state, CalOSHA, and the city and county where you have personnel performing work, as defined above. 

Also, if you have questions about your particular situation, it’s always a good idea to seek advice from your legal counsel.

Please reach out to me at michelle@connecttohr.com if you need help creating a return-to-work plan.

New COVID-19 Regulations

In addition to the new laws I described in my last blog, there are some new regulations related specifically to COVID-19.

Cal-OSHA COVID-19 Reporting Requirements

AB 685, effective January 1, 2021, requires that within one business day of being notified by an employee of potential COVID-19 exposure, an employer must provide written notice to all employees of the following:

  • Potential exposure
  • Information regarding all COVID-19 related benefits available under federal, state and local laws
  • Disinfection and safety plan the employer will implement per CDC guidelines

Employers must maintain records of notifications for at least three years.

Workers Compensation

SB 1159 creates “rebuttable presumption” that, in certain circumstances, illness or death from COVID-19 is work-related. This rebuttable presumption remains in place until January 1, 2023, and applies to all employees who:

  • Work for a company with five or more employees
  • Test positive during any COVID-19 outbreak at the place of employment

Workers Compensation now also has a new reporting requirement that employers must report to their Claims Administrator within three days that an employee has tested positive for COVID-19.

An employer may dispute the presumption by providing evidence of measures it took to reduce potential transmission of the disease or the employee’s nonoccupational risks of COVID-19 infection.

Testing and Vaccines

Employers may require, as part of their COVID-19 health and safety protocols, that employees who work onsite be periodically tested for COVID-19, as long as the employer pays for the test and adheres to HIPAA and privacy law.

Employers may not, however, require antibody testing.

As for vaccines, the rules on this are not clear yet, so the best thing to do is consult your legal counsel.

COVID-19 Prevention Plan

As of November 30, 2020 Cal-OSHA has required employers to have a written COVID-19 Prevention Plan. This can be a stand-alone document or integrated into the employer’s Injury and Illness Prevention Program.

The COVID-19 Prevention Plan applies to all employees except: 1) When there is only one employee who does not come in contact with other persons; 2) Employees working from home; 3) Employees already covered by the aerosol transmission standard.

The written COVID-19 Prevention Plan must include the following:

  1. A system for communication
  2. Identification and evaluation of COVID-19 hazards
  3. Investigating and responding to COVID-19 cases in the workplace
  4. Correction of COVID-19 hazards
  5. Training and instruction
  6. Physical distancing
  7. Face coverings
  8. Other engineering controls, administrative controls, and personal protective equipment (PPE)
  9. Reporting, recordkeeping, and access
  10. Exclusion of COVID-19 cases
  11. Return to work criteria

Cal/OSHA has a model COVID-19 Prevention Plan on its website as well as FAQs and other helpful information for employers about COVID-19.

As a reminder, we have an employer resource page that has links to a variety of sites that deal specifically with COVID-19 information.  Here’s the link again for your reference Connect to HR Employer Resources.

Also, I spoke to my colleague, Mary Hiland, Ph.D earlier this year on the topic of health and safety in the workplace.  Click here for a recap of the interview.

Please reach out if you need help updating your IIPP or have questions about implementing these new regulations.

New Employment Laws for 2021

A new year is just around the corner! No doubt we will all be happy to put 2020 behind us!

As with every new year, there are a number of new employment laws and regulations. This is the first of two articles to inform you about those laws.

Expanded California Family Rights Act (CFRA)

The California Family Rights Act currently requires employers with 50 or more employees to provide eligible employees with 12 weeks of unpaid leave in a 12-month period to 1) recover from a serious health condition; 2) care for a family member with a serious health condition; or 3) bond with their child.

SB 1383 expands CFRA coverage, effective January 1, 2021, as follows:

  • The law now applies to employers with 5 or more employees
  • It eliminates the employee count within a 75-mile radius requirement 
  • The definition of covered family members is expanded from child, parent, spouse or domestic partner to include grandparent, grandchild and siblings
  • “Child” is no longer limited to children under age 18
  • The leave cap of 12 weeks for new child bonding for two parents employed by the same employer has been eliminated
  • The key employee exception is now repealed
  • The law repeals the New Parent Leave Act for employers with 20 to 49 employees because the new CFRA will provide this coverage

A CFRA and Federal Family Medical Leave (FMLA) may run concurrently or separately depending on whether the CFRA leave is covered by FMLA. If it’s not, an eligible employee may take both – 12 weeks for CFRA and an additional 12 weeks for FMLA. Be sure to update your policies to reflect the changes.

Deadline for CA Sexual Harassment Prevention Training

SB 778 extends the deadline for CA anti-harassment training to January 1, 2021 for employers with fewer than 50 workers/contract employees.

All employers must provide two hours of training to supervisors and one hour of training to non-supervisors. Training must be repeated every two years and new employees/supervisors must be trained within their first six months. Other requirements include:

Supervisor training must be “live,” and interactive, e.g., via a webinar, with the opportunity for participants to ask questions, have them answered and seek guidance and assistance.  Supervisors are expected to actively participate in the training. Employers must document attendance and keep for two years a copy of the webinar, plus all written materials, responses submitted during the webinar, and all written responses or guidance the training provided during the webinar.

Increased Protections for Employees Who are Victims of Crime or Abuse

AB 2992 expands protections for employees who take time off from work as a result of crime or abuse. Existing law requires that employers with 25 or more employees allow an employee who was the victim of domestic violence, sexual assault and/or stalking to take time off to seek medical attention or related services.  The new law expands those protections to include victims of any other crime or abuse that causes physical or mental injury and a threat of physical injury, and any person whose immediate family member is deceased as the direct result of the crime.  Under this law, immediate family members are broadly defined to include child, parent, sibling, partner and any other individual whose close association with the employee is the equivalent of a family relationship. Employers are prohibited from discharging or discriminating against employees who take time off for reasons defined in the law. Find more information here.

Unlimited Vacation

With more companies offering employees “unlimited vacation,” it’s important to note some recent case law around the payout of unused vacation upon termination. In McPherson v. EF Intercultural Foundation, multiple former employees sued for failure to pay unused vacation. They had been told by the company that they could take an unspecified amount of time off for vacation, subject to their supervisor’s approval. Because the employer did not have a written policy that clearly defined and communicated the obligations of employee and employer in requesting and approving time off, the Court required that the employer make some payment to the employees for expected vacation that they did not use.

If you offer, or are considering offering unlimited vacation, be sure you have a written policy and that you review it with your legal counsel for compliance. Also, be sure that you administer the policy consistently and you communicate it to your employees.  Note that unlimited vacation policies should not apply to non-exempt employees. 

EEOC Pay Data Reporting

Although federal EEO reporting has been paused, California passed legislation in September (SB 973) that requires employers with 100 or more employees to report certain pay and other data to the Department of Fair Employment and Housing (DFEH). The first report is due March 31, 2021 and annually thereafter. Find out more about reporting requirements here.

Minimum Pay Changes

Finally, please note these minimum pay rate changes for California employees, all effective January 1, 2021.

Non-exempt minimum wage:

  • $14/hour for employers with 26 or more employees
  • $13/hour for employers with 25 or fewer employees

Minimum exempt salary:

  • $58,240/year for employers with 26 or more employees
  • $54,080/year for employers with 25 or fewer employees

Computer Software Professionals: $98,907.70 per year ($47.48 per hour)

Minimum wage rates may vary according to the city/county where the employee works. Be sure you are adhering to local requirements.

As always, please reach out to me at michelle@connecttohr.com if you have questions.

In my next article we’ll cover some new laws and regulations specifically related to COVID-19.

Answers to Your HR Questions – Just in Time

Managing the many aspects of the HR function can be challenging, especially if you are also trying to run the business or are new to HR operations. In small and medium sized companies, the “HR person,” whether it’s the business owner or someone dedicated to that role, is often flying solo with no one to consult about an HR issue or the details of a new compliance requirement.  Trying to find answers via an online HR database can be frustrating and time consuming.

Now, as we look at returning to work following the COVID-19 shelter-in-place mandate, business owners are faced with a new set of challenges:

  • How do we safely reopen?
  • What if someone does not want to come back to work?
  • What protective equipment do we need?
  • What are the new working guidelines?
  • How do I even get started?

Connect to HR’s Just in Time 3-Hour HR Advisory Service has the answers. With this service you can access up to 3 hours of “live” HR consulting support from a trusted, senior-level HR consultant by phone, email or in person. Our service is specifically designed for small to medium sized companies:

  • Owners/CEOs/Nonprofit Leaders
  • Those running the HR function
  • People new to HR operations

Whether you need a sounding board to discuss approaches to an employee relations issue, want tips on how to create a workforce plan, or have questions about implementing a social distancing protocol in the office, Connect to HR’s Just in Time 3-Hour HR Advisory Service is here to help.

You do not have to do it alone!

Contact us today for a FREE 30-minute consultation to see how our Just in Time 3-Hour HR Advisory Service can benefit you.

https://calendly.com/michellemendoza-connecttohr/30-minute-consultation

You can reach me directly at michelle@connecttohr.com, and find out more about our services at www.connecttohr.com.  Click here to learn more about our Just in Time 3-Hour HR Advisory Service.

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). 

OR

  • 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:

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:

  1. (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
  2. (B) The worker performs work that is outside the usual course of the hiring entity’s business; AND
  3. (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.

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