Cal/OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week.

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Cal OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week. California rules are very clear on how employers must protect their workers from heat illness.

Cal OSHA’s goal is to prevent deaths and serious illnesses and injuries caused by exposure to heat.” Special attention must be given to new employees who have not been acclimatized to working under hot conditions, as they are particularly vulnerable to heat illness. They must be monitored carefully for signs of heat illness and should, if possible, be allowed to begin work earlier in the day when the temperature is lower or gradually work up to a full schedule. Many regions of the state will be reaching temperatures in the triple digits. When temperatures reach 95 degrees or above, employers are required to implement high heat procedures to ensure outdoor workers are protected.

Procedures include effective monitoring of all workers through methods such as a mandatory buddy system for workers or regular communication with workers who work alone. California’s Heat Illness Prevention Standard requires employers to train workers on the signs and symptoms of heat illness, provide shade when temperatures exceed 80 degrees, develop emergency response procedures and train workers on how to execute those procedures when necessary. Cal OSHA inspects outdoor worksites in agriculture, construction, landscaping, and other operations throughout the heat season.

A written Injury and Illness Prevention Program is required for employer who have more than 10 employees. Documented Heat Stress training is required regardless of employee size.

If you should have any questions, please contact us 925-556-4404.

Is Crying at Work Sufficient Notice of an FMLA Covered Condition?

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It is well established that an employee need not specifically request leave under the Family and Medical Leave Act (“FMLA”) in order to benefit from the Act’s protections.  Rather, the law requires the employer to take action to notify an employee of FMLA rights when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason or that the employee may need such leave.  The difficulty facing employers is when to initiate the FMLA process based on observations of the employee’s condition or behavior.  In a recent decision out of the Northern District of Illinois, the Court held that an employee sufficiently stated a claim for interference under the FMLA because the employer was on notice of a serious health condition when she became “extremely distraught and began crying regularly and uncontrollably at work.”

In Valdivia v. Township High School District 214, a secretary claimed her coworkers made derogatory remarks about Hispanic students and their families.  She allegedly complained but nothing was done.  After expressing concern over whether she could continue working while in frequent distress, she was allegedly told that she needed to decide whether she wanted to continue working or resign.  The employee reportedly also told the principal that she was overwhelmed, not sleeping, not eating, and losing weight but she was again given the option of working or resigning.  Ultimately the employee resigned for medical reasons.

In addition to claiming a hostile work environment, the employee claimed that the school interfered with her FMLA rights by failing to provide her notice that she had the right to take job protected leave.  The Court noted that the FMLA notice requirement for employees is “not demanding.”  In fact, it may be possible that the employee is not even aware he/she is suffering from a serious health condition.  In these cases, “clear abnormalities in in the employee’s behavior may constitute constructive notice of a serious health condition.”  The school argued that it was not reasonable to be held accountable for knowledge of the employee’s health condition when she was not even aware of it.  The employee was diagnosed with depression after her termination.  The Court dismissed that argument and noted that uncharacteristic or unusual conduct at work may itself provide adequate notice of a serious health condition.

Employers often struggle with how to address situations involving changes in an employee’s condition or conduct.  Failure to address the situation as one that is potentially covered by the FMLA or even the ADA could result in a violation of the employee’s rights under those laws.  On the other hand, treating an employee as if they have a serious health condition could result in a claim that the employee was improperly regarded as disabled or, in the event of a later adverse employment action, retaliated against for having the health condition.  As demonstrated by this decision, Courts and the Department of Labor tend to give employees the benefit of the doubt with respect to notice of an FMLA condition and employers must be cautious about failing to react in these situations.

Cal/OSHA Urges Employers to Prepare For Sizzling Temperatures

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As Northern California braces for triple digit temperatures, Cal/OSHA urges all employers to revisit their Injury and Illness Prevention Programs and their emergency response procedures to make sure they are thoroughly prepared for high heat. Sacramento’s National Weather Service is forecasting temperatures in the 90s today and through the weekend. Early next week temperatures will reach triple digits in much of Northern California, from south of Stockton up to Redding. “During heat waves and whenever temperatures reach or exceed 95 degrees, employers must take additional steps to monitor workers for signs and symptoms of heat illness,” said Cal/OSHA Chief Juliann Sum. “Water, rest and shade can protect workers from the heat.” California’s outdoor workplace Heat Illness Prevention regulations require employers to take four steps to prevent heat illness:

• Training – Train all employees and supervisors on heat illness prevention.

• Water – Provide enough fresh water so that each worker can drink at least 1 quart per hour, and encourage workers to do so.

• Shade – Provide shaded areas upon request or when temperatures exceed 80 degree, and encourage any worker to take a cool-down rest in the shade for at least 5 minutes to protect against overheating. Workers should not wait until they feel sick to cool down.

• Planning – Develop and implement effective written emergency response procedures for complying with Cal/OSHA’s Heat Illness Prevention Standard. Cal/OSHA will inspect outdoor worksites of industries such as agriculture, construction, and landscaping throughout the heat season. Cal/OSHA’s Heat Illness Prevention program, the first of its kind in the nation, includes enforcement of heat regulations as well as multilingual outreach and training for California’s employers and workers. Information on heat illness prevention requirements and training materials is posted on Cal/OSHA’s Heat Illness Prevention web page and on the “Water. Rest. Shade. The work can’t get done without them” educational campaign website. A Heat Illness Prevention e-tool is also available on Cal/OSHA’s website.

IRS Says Employer’s Parking Benefits Are Taxable to Employees

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In an information letter, the IRS concludes that benefits an employer provides under its company parking policy are taxable income to the employees that choose to use the benefit.

An IRS information letter is the agency’s response to a taxpayer’s request for information about the taxation of a specific benefit under particular circumstances. Information letters are not binding legal advice and may not be used or cited as precedent. However, they provide general guidance for other employers that provide, or are contemplating providing, similar benefits to employees under similar circumstances.

Parking Policy

An employer implemented a policy under which it contracted and paid for secure parking for its employees in a parking facility near the office. The employer pays the parking vendor directly for the parking spots. Employees who wish to use the parking must agree, in writing, to reimburse the employer by having the monthly parking fee deducted from their pay the month before they use the parking. The employees cannot get a refund of the amounts withheld if they do not use the parking.

The cost of the parking is less than the statutory limit under Internal Revenue Code (IRC) § 132. The employees do not have the option to choose between taxable cash compensation and parking. Accordingly, the employer does not exclude the cost of the parking from the employees’ taxable wages. Instead, the employer deducts the cost of the parking from the employees’ after-tax wages.

The employer requested information from the IRS because employees who have elected to use the parking spots have asked whether the amounts deducted from their wages should be excluded from their taxable income and wages as a “qualified parking” benefit under the IRC.

‘Qualified Parking’ Under the IRC

Under the IRC, an employer-provided fringe benefit is presumed to be taxable income to employees unless it is specifically excluded from income by another section of the IRC. Under IRC § 132(a)(5), “qualified transportation fringe benefits” are excluded from employees’ gross income. “Qualified parking” that is “provided” to employees on or near an employer’s work premises is excluded from gross income under IRC § 132(f)(1)(C). Under IRC regulation § 1.132- 9(b) Q/A 4, parking is “provided” by an employer if:

  • It is on employer-owned or -leased property;
  • It is paid for by the employer; or
  • The employer reimburses employees for their parking expenses.

Taxable Arrangement

In its information letter responding to the employer’s inquiry, the IRS concluded that in the employer’s particular situation, the parking benefits are not “qualified transportation fringe benefits” and, therefore, are taxable to the employees. To be considered “qualified”, and therefore tax-free, the employer would have to reimburse the employees for their parking expenses by providing the reimbursements either:

  • In addition to the employee’s regular wages; or
  • In place of pay.

Reimbursements provided in place of pay are called “compensation reduction arrangements.” Under such arrangements, an employer permits employees to elect to reduce their taxable compensation in order to receive tax-free reimbursements for parking expenses they have actually incurred.

This particular employer’s arrangement, under which the employer purchases parking spots from a parking vendor and then permits employees to pay the employer for the parking spots using the employees’ own after-tax compensation, does not meet the definition of “qualified parking” under the IRC and regulations.

If you should have any questions, please contact your HR Specialist at 925-556-4404.

Addressing Workplace Violence

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As a series of tragic events in recent years illustrate, employers must confront the reality that they are not immune from workplace violence, including the risk of active shooter events. While that challenge may seem daunting, there are certain steps employers can and should take to ensure their workplace and their employees are protected.

It is important for an employer to first understand that workplace violence, as defined by the FBI, is “any action that could threaten the safety of an employee, impact an employee’s physical or psychological well-being, or cause damage to company property.” As such, “workplace violence” encompasses a wide category of acts.

In order to help an employer recognize and prepare for a potential threat, Doherty recommends the following three steps.

Conduct a Needs Assessment

One of the most important things an employer can do is to conduct a needs assessment across the organization to determine the strengths and/or weaknesses of its policies, procedures, practices and other resources aimed at preventing or mitigating   an act of violence. Also recommended by the Occupational Safety and Health Administration, this audit should be a cross-functional, multi- disciplinary effort that encompasses HR, legal, security and other departments that may be somehow involved in ensuring that appropriate measures are taken in the event of an incident.

In addition, by conducting a needs assessment in the organization, an employer will be able to identify any shortfalls it may have. For instance, a small business without a legal or security department of its own may decide that it should outsource certain functions such as drafting and/or reviewing its policies and safety procedures. Doherty also suggests that organizations, especially small businesses, develop a relationship with their local law enforcement agency and have them “on call” in the event an employee or third party raises concerns.

Educate the Workforce

An employer should focus on awareness as a vital first line of defense because there are always warning signs of behavior before a violent incident.” As a result, training the general workforce, including supervisors and department heads, about how to identify behavioral indicators of concern is critical.

First, however, employees should be made to understand that a potential attacker does not fit a particular descriptive or demographic profile. It is always certain behavior or indicators exhibited by the person that assisted the agency in assessing and identifying a threat, not the fact that the attacker fit a particular profile.

Some common behavioral indicators that should cause concern include:

  • A dramatic decrease in productivity;
  • A systemic pattern of being disheveled or unkempt;
  • Paranoid delusions, e.g., “Everyone is out to get me.”
  • History of despair or depression;
  • Comments alluding to suicide;
  • Major loss or change in life, e.g., divorce or death in family; and
  • Increased interest or discussion about violence or weapons.

In recognizing these behavioral indicators, it will allow the employer to increase scrutiny over an employee’s actions, productivity and interactions with others.

As important as training the workforce on behavioral indicators is, creating a “culture of safety” that encourages employees to report concerns as they emerge rather than wait until they escalate is just as critical. An employer should have a reporting procedure in place that allows employees to make a report without fear of retaliation. Also, supervisors should be trained on how to address an employee who comes to him or her to raise a concern and know when to escalate it through the appropriate channels (e.g., a department head or law enforcement).

An attacker rarely will make a direct threat. In fact, in most cases, he or she won’t make a threat at all. Therefore, being able to identify behavioral indicators are key.

Understand the Domestic Abuse Connection

One component of workplace violence prevention believes employers rarely consider is the connection between domestic abuse and violence at work. 33% of women killed in the workplace are killed as a result of a domestic abuse.

Employers should encourage employees to voluntarily bring a domestic abuse situation and/or restraining orders to the attention of HR. In doing so, HR may be able to take appropriate steps to ensure the physical security of the domestic violence victim as well as his or her co-workers.

For instance, HR may give the receptionist or the security guards a picture of the perpetrator to be on alert and ensure that he or she does not gain access to the workplace. Also, HR may change the victim’s parking spot, email address, or phone number to inhibit the perpetrator’s ability to find the victim and protect the workplace. Oftentimes, a restraining order specifies the workplace as a forbidden area for that person to visit so it is imperative that the employer as well local law enforcement are made aware of the parameters of the restraining order.

It should be stressed that it is also important for the employer, HR, supervisors and employees to be trained on how to spot someone who may be a victim of domestic violence. In other words, all should be aware of “behaviors of concern” related to domestic violence, including:

  • Increased nervousness;
  • Harassing phone calls
  • Increased uninvited appearances of the spouse at work; and
  • Appearance of unexplainable bruises.

 

Here in California we also have two very important tools dealing with Domestic Abuse including;

  • Domestic Violence Restraining Order (DVRO)
  • Gun Violence Restraining Order (GVRO)

While neither of these can completely solve a domestic abuse situation, they can go a long ways in keeping a safe workplace.

If you should have any questions, please contact your Human Resources Specialist at 925-556-4404.

Emeryville Strikes Again: Another Employee-Friendly Ordinance to Take Effect

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San Francisco’s notoriously employee-friendly ordinances continue to set the standard for its neighboring cities.  Emeryville, which is across the bay from San Francisco and neighbors Oakland, recently passed a fair workweek ordinance that patterns itself off of San Francisco’s Retail Workers Bill of Rights. The Emeryville ordinance applies to larger retail and fast food employers, and has strict scheduling requirements as set forth below.

Effective Date and Applicability

Emeryville’s Fair Workweek Employment Standards will become effective on July 1, 2017. These standards will apply to retail employers with at least 56 employees globally, or fast food employers with at least 56 employees globally and 20 or more employees within the city of Emeryville. To be covered under the ordinance, employees must perform at least two hours of work per calendar week within the city of Emeryville.

Advance Notice of Work Schedule

New hires: Prior to or upon the start of employment, covered employers must provide a written, good faith, estimate of the employee’s work schedule. The employee may then request that the employer modify the schedule, which the employer must consider. The employer retains sole discretion to accept or reject a modification and must provide the employee written notice of its decision prior to or upon the start of employment.

During employment: Covered employers must provide employees two weeks’ advance notice of their work schedules by either posting the written schedule in a conspicuous, readily accessible place at the workplace or by transmitting the work schedule by electronic means. For new employees, the employer must provide the employee’s schedule prior to or upon hire.

Scheduling changes: A covered employer must notify an employee of any changes to his or her posted schedule via in-person conversation, telephone call, email, text message, or other electronic communication. Employees have the right to decline any previously unscheduled hours, and the employer owes “predictability pay” when  the employer adds or subtracts hours or moves to another date or time, cancels, or adds a previously unscheduled shift. Critically, employers do not owe predictability pay for employee-generated changes.

“Predictability pay” is based on an employee’s regular rate of pay, and is owed under the following circumstances:

  • When an employer provides less than 14 days’ notice but more than 24 hours’ notice, the employer owes one hour of predictability pay for each changed shift.
  • When an employer provides less than 24 hours’ notice, the employer owes a different amount of predictability pay based on whether the previously scheduled hours are reduced/canceled or merely changed.
    • If shift hours are canceled or reduced, the employer owes either four hours or the number of hours of the employee’s scheduled shift, whichever is less.
    • If the hours are merely changed, the employer owes one hour of predictability pay per shift.

 

Exceptions: Predictability pay does not apply to any employee-initiated schedule changes, such as requested sick leave, time off, shift trades, or additional shifts. Predictability pay also does not apply when operations cannot begin or continue due to (1) threats to employers, employees, property, or when civil authorities recommend work not begin or continue; (2) public utility failures; (3) acts of nature, such as flood or fire; or (4) mutually agreed-upon work shift swaps or coverage among employees.  While the San Francisco ordinance (under San Francisco Police Code, Article 33G, Section 3300G.4(e)) does not require employers to pay predictability pay for employer-initiated changes that result in overtime hours worked, the Emeryville ordinance does not contain a similar exception.

Offer of Work to Existing Employees

Prior to hiring new direct or contracted employees, a covered employer shall first offer additional hours or work to existing, qualified, part-time employees. An employer retains the discretion to divide the additional hours of work among part-time employees so long as that method does not discriminate based on a protected category (including family care obligations) or Affordable Care Act requirements.

An employer’s offer of additional hours must be in writing or posted in a conspicuous location or internal website. Employees have 72 hours to accept additional work expected to last more than 2 weeks, and 24 hours to accept work expected to last 2 weeks or less. Employers must retain records of written offers of additional hours for at least three years.

Scheduling Requirements—Anti-Clopening

“Clopening” refers to the practice of working a closing evening shift followed by an early morning opening shift. An employee has the right to decline hours that occur less than 11 hours after the end of their previous shift. If an employee works these hours, they must be compensated at one and a half times their regular rate of pay. An employee also has the right to request a modified work schedule and employers are prohibited from retaliating against employees for making this request.

Notification and Enforcement

Employers must provide new employees a notice of this ordinance at their time of hire. Employers are also prohibited from retaliating against employees who make or participate in a complaint to the City of Emeryville.

The City of Emeryville may investigate and informally resolve any complaints. The city may also issue fines for failure to comply with these requirements, as well as order reinstatement, civil penalties, unpaid wages plus interest, and reimbursement of the city’s costs and attorneys’ fees.

Issues and Unanswered Questions

The Emeryville ordinance calculates predictability pay based on an employee’s “regular rate of pay” as calculated under federal law.  An employee’s regular rate of pay includes all non-discretionary payments, such as bonuses, commissions, or other payments. The San Francisco ordinance, however, under Rule 4.1 of the Final Rules Implementing the Formula Retail Employee Rights Ordinance, calculates regular rate of pay based on total earnings in base wages plus commissions or piece rates for the prior calendar year or, when the employee does not have a prior calendar year’s amount of work history, the calculation is based on total earnings and hours worked from the date of hire.     Employers with operations in both cities should ensure they are performing the regular rate of pay calculation in compliance with the applicable law.

There is no exception to the predictability pay requirement when schedule changes are due to disciplinary reasons. For example, if an employer were to send an employee home for misconduct, that employer would owe the employee predictability pay related to this schedule change. The City of Emeryville indicated that this exception was in previous versions of the ordinance, and we hope that it will clarify this issue in its forthcoming enforcement regulations.

The City of Emeryville is in the process of scheduling stakeholder meeting as well as drafting enforcement regulations. We will provide a summary of the enforcement regulations as soon as they are released as well as a link to the City of Emeryville’s model notice.

What to Do When ICE Comes Knocking

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The Trump administration’s tough rhetoric and early aggressive actions on immigration promise a period of increased worksite enforcement. With the administration’s strong statements against illegal immigration and abuses of the immigration system, including an executive order calling for 10,000 new U.S. Immigration and Customs Enforcement (ICE) agents, employers can expect an increased number of audits, raids, and investigations. Given this added scrutiny and the increased prospects of a fine or other penalty, employers may want to know their rights in the event of a worksite visit, and to review and update their protocols for responding to such visits.

Employer Rights

Law enforcement officers will not assert an employer’s rights on the employer’s behalf. Therefore it is important that employers be aware of their rights and be prepared to assert them in the event of a site visit.

  • Once a company representative becomes aware of a worksite investigation or raid, swiftly notifying in-house legal counsel or an appropriate corporate officer can help the employer to preserve its rights. Note that a government official with a warrant is not required to wait for counsel to begin executing the warrant, so time will be of the essence when trying to stay on top of the situation.
  • If an officer is conducting a site visit to obtain I-9 records, unless the officer is executing a search warrant, the employer has the right to three days’ notice prior to turning over I-9 documents.
  • An employer has the right to deny officers permission to access non-public areas of the employer’s property absent a valid warrant.
  • If the officer is in possession of a warrant, the employer has a right to review the warrant to verify its validity and scope (e.g., Is it signed by a court? Has the warrant expired? What are the locations to be searched and items sought?).
  • Warrants apply only to law enforcement officials; an employer has the right to refuse media or news reporters access to the facility.
  • If an employee is to be interviewed as a representative of the employer, the employer has the right to have counsel present during any such questioning.
  • Employers may benefit from taking detailed notes of all activities being performed by the visiting government officials. If possible, employers may even wish to take video recordings of the officers’ activities. The officer may insist that making recordings is not permitted; however, in many jurisdictions, employers do have that right as long as they are not interfering with law enforcement operations.
  • A helpful practice during a worksite investigation is to obtain the lead officer’s business card or contact information.

 

Preparing for a Site Visit

Employers that take proactive steps to fully develop policies and procedures to follow in the event of a worksite inspection will be better prepared to effectively assert their rights and protect their interests.

Designate an Immigration Compliance Officer. One of the key proactive measures an employer can take in anticipation of a worksite audit or raid is to designate an immigration compliance officer as a central point of contact for law enforcement agencies in connection with any worksite enforcement activities. An immigration compliance officer has three key responsibilities in the event of a site visit by immigration enforcement officers: first, to serve as a crucial point of contact between the company’s legal team and its immigration counsel; second, to coordinate between the legal team and site personnel to ensure that local personnel behave in a manner that is compliant with the law while also preserving the employer’s rights; and third, to be familiar with the company’s immigration records and procedures so he or she is able to respond to basic government questions in the absence of counsel.

Train Personnel Who Interface With the Public. Another good practice is to train personnel who may encounter an immigration enforcement officer at an employer site (typically a receptionist, cashier, or site manager) to request a copy of the officer’s credentials (i.e., badge and business card), not to disclose any information, and to direct all inquiries and requests for site access to the immigration compliance officer. Employers may also wish to consider designating primary authority for granting access to facilities or documents to the immigration compliance officer. Despite the desire to be helpful, employees will best serve the company’s interests by being polite and respectful while firmly adhering to this standard procedure.

Develop Practical Standard Operating Procedures and Guides. The stress of a site visit may cause otherwise capable employees to make less than optimal decisions or ill-advised statements to officers. Whether this stress is caused by the shock and awe of a full-scale ICE worksite raid or the mere intimidation of being questioned by a federal agent, it can present risks for employers. Having well-thought-out field guidance prepared in advance may be the deciding factor in effective preservation of employer rights.

Practical field guidance that employers may wish to consider include a list of “dos and don’ts” and a list of steps to follow when immigration officers appear on-site. These guides can anticipate real-world situations that may arise. (What if an officer appears to be detaining employees for an extended period of time? What if an officer has no warrant but insists on accessing the site anyways? What if an officer asks about a specific employee? What if an officer is simply hanging around the parking lot and questioning employees? What if an officer appears to be exceeding a search warrant?) There are many ways a site visit could take an unexpected turn, and employers may want to be prepared for these possibilities.

Clean House and Keep It in Order. The best defense is full compliance. As part of a regular compliance best practices regimen, many employers conduct regular in-house I-9 audits (at least annually) to ensure that their I-9 forms are properly completed, retained, and corrected as applicable. Employees responsible for I-9 completion may benefit from regular training on I-9 procedures to help them keep abreast of the latest changes to the I-9 forms and rules. A company I-9 compliance program is another tool that provides guidance to employees who have I-9 responsibilities.

By ensuring proper I-9 completion (including following all correct procedures for completing I-9 forms), an employer not only reduces its risk of monetary penalties from paperwork violations but likewise reduces the risk of penalties arising from employment of an unauthorized worker.

Key Takeaways

Many changes have occurred in recent months, including: increased I-9 penalties, the issuance of a new Form I-9, and now, the emergence of the Trump administration’s immigration agenda, which appears to carry a “zero tolerance” focus. In this new enforcement climate, employers may want to shore up their internal compliance procedures and familiarize themselves with their rights in the event of enforcement activities.

Summer Hiring – Are You Ready?

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It may be hard to believe, but summer is less than six weeks away.

More than four out of every 10 employers plan to hire seasonal workers for the summer, according to a survey released last week by the job search website CareerBuilder.

If you are one of them, be sure you consider some of the potential compliance challenges that can arise when hiring summer help.

Child Labor

Will you be hiring minors? If so, it’s important to bear in mind that federal law and most state laws restrict the hours during which minors may work, including:

  • The maximum number of hours and/or days a minor may work per week;
  • The maximum number of hours a minor may work per day; and
  • Certain timing restrictions such as the times of day during which minors may work and any restrictions forbidding a minor from working while school is in session.

Many child labor laws also forbid minors from working in certain occupations, require employers to maintain proof of age for all employees, and more.

Unpaid Interns

Almost all interns should be classified as employees. As a result, you usually can’t just pay them with “valuable real-world experience”; you have to pay them cold, hard cash – the applicable federal, state or local minimum wage, whichever is highest, for all hours worked. In very rare cases in which an internship meets certain very strict criteria, it’s possible to have an unpaid internship. If you do, be sure to follow these steps.

Coverage Thresholds

Most federal and state employment laws include coverage thresholds. These laws do not apply to smaller employers, depending on their size. A few laws exclude summer hires and other temporary employees from their coverage thresholds. For example, the federal Family and Medical Leave Act applies only to employers that have employed 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year. But under most other laws, summer hires could mean the difference between having to comply with a law and not.

Joint Employment

If you’re hiring summer help from a temporary staffing agency, don’t forget that there is a possibility you could be considered a joint employer under a variety of employment laws. In fact, the Occupational Safety and Health Administration says that “staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers – including, for example, ensuring that OSHA’s training, hazard communication, and recordkeeping requirements are fulfilled.”

Should you have any questions, please contact her HR Representative at 925-556-4404.

Both the City of San Diego and the State of California “Clarify” Their Sick Leave FAQs

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As we recently reported regarding the City of Los Angeles, both the City of San Diego and the California Department of Labor Standards Enforcement (“DLSE”) have updated their “Frequently Asked Questions” (“FAQs”) related to the respective local and state sick leave requirements. Below are some of the more salient points from each.

 

San Diego Earned Sick Leave

Similar to the City of Los Angeles’ recent changes, the City of San Diego updated its FAQs related to the City’s earned sick leave ordinance as applied to employees who are “salaried” and not “entitled to payment of minimum wage” by stating that they are not entitled to earned sick leave under the ordinance. Presumably, such employees may include those who are exempt “white collar” employees.

Regardless of coverage under the San Diego ordinance, employers still must comply with state law, which mandates provision of sick leave to nearly all employees.

California State Paid Sick Leave

The DLSE issued additional FAQs regarding the state law.  Specifically, these updated FAQs address questions regarding “grandfathered” paid time off policies (or PTO plans in effect prior to January 1, 2015), rates of pay, and the impact of state law on employer attendance policies.

  • Grandfathered Plans

The FAQs elaborate on how a “grandfathered” PTO plan will comply with state law. These further criteria include:

(1)  the existing policy or plan makes an amount of paid leave available that could be used for at least as many paid sick days as required under state law; and

(2)  that satisfies one of the following criteria: (a) the time off may be used under the same or more favorable conditions as specified under state law; or (b) that the plan contains more favorable conditions to employees than required under state law (e.g., provides more sick days or a more favorable accrual rate, etc.).

Please note these criteria are in addition to other accrual requirements set forth in the statute and earlier FAQs.

  • Rate of Pay

 The FAQs confirm that the state law does not impact how employers must compensate employees under existing PTO plans for time that is taken off for purposes other than paid sick leave, e.g., vacation, etc.

  • Attendance Policies

The FAQs address the impact of state paid sick leave on employer attendance policies. According to the FAQs, if an employee has accrued or available sick leave, an employer’s attendance policy cannot assign an “occurrence” or apply “points” for an absence covered under state law.

Moreover, if an employee does not have any accrued or available paid sick leave and if the employee has an unscheduled absence for a reason covered under state law and which otherwise violates the employer’s attendance policy, state law does not prohibit the employer from giving the employee an “occurrence” for such absence.  Importantly, the FAQs provide that state law, “does not ‘protect’ all time off taken by an employee for illness or related purposes; it ‘protects’ only an employee’s accrued and available paid sick leave as specified in the statute.

Clients should review their policies and practices and if you should have any questions, please contact your HR Specialist at 925-556-4404.

Employers Should Review Form I-9 for SSN Glitch

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Employers that downloaded Form I-9, Employment Eligibility Verification, between November 14 and November 17, 2016, are advised to immediately review any of the forms they used to ensure their employees’ Social Security numbers (SSNs) appear correctly in Section 1. US Citizenship and Immigration Services (USCIS) has discovered a “glitch” that occurred when the revised Form I-9 was first published on November 14, 2016.

When employees completed and printed Section 1 of the affected form using a computer, numbers entered in the SSN field were automatically changed. For example, if an employee entered the number 123-45-6789 in the SSN field, the number would appear as 123-34-6789 when the form printed.

Employers using any I-9s that contain this error are advised to download and save a new Form I-9. These employers should also tell affected employees to draw a line through the transposed SSN in Section 1 of their printed forms, enter the correct SSN, and then initial and date the change. These employers should also include a written explanation with the affected I-9s about why the correction was made in case there is a future audit.

USCIS notes that it immediately repaired and reposted the form on November 17, 2016, so any forms printed out after that date would not have been affected.

The importance of correctly completing Form I-9 cannot be understated. Employers and employees are required to complete the form to both verify the identity of their employees and confirm that the employees are authorized to work in the US. Employers are prohibited from knowingly hiring or continuing to employ an unauthorized individual and can be subject to monetary and/or criminal penalties for hiring or continuing to employ an unauthorized individual.