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Five Things You Should Know About Holidays and Holiday Pay In California

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1. California employers are not required to provide employees time off for holidays.

 There is no requirement that California employers provide time off (except for religious accommodations, - see below) for holidays. California's DLSE's website states the following: Hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays, that it close its business on any holiday, or that employees be given the day off for any particular holiday. 

2. California employers are not required to pay for time off for holidays, nor are they required to pay additional wages if employees work on holidays.

Likewise, there is no requirement that employers pay employees extra pay or "holiday pay" for work performed on holidays. Employers can voluntarily agree to pay employees extra pay for work that is required during holidays, but these terms would be governed by policy set forth by the employer. Therefore, employers are urged to make sure their holiday pay policies are clearly set forth. California's legislature has proposed bills that would require certain employers to pay employees double time for work done on Thanksgiving, but none of these bills have become law. For example, the "Double Pay on the Holiday Act of 2016" proposed to require an employer to pay at least 2 times the regular rate of pay to employees at retail and grocery store establishments on Thanksgiving. None of these attempts by the legislature have been successful yet in requiring California employers to pay any extra "holiday pay."

3. Employers must provide reasonable accommodations for employees who cannot work on certain holidays due to religious observances.

Employers need to be aware of any religious observances of their employees since employers need to provide reasonable accommodations for employees due to religious reasons. The analysis of reasonable accommodation is required is a case by case analysis based on the company's type of business and the accommodation requested by the employee. If the employer's operations require employees to work during normally recognized holidays, such as a restaurant, then this should be communicated to employees in the handbook or other policies and set the expectation that an essential function of the job requires work during normal holidays.

4. If an employer does pay for time off during holidays, the employer does not have to allow employees to accrue holiday paid time off.

If an employee leaves employment before the holiday arrives, the employer is not required to pay the employee for the day off. However, the employer's policy regarding holiday pay must clearly set out that this benefit does not accrue to employees and that they must be employed during the specific holidays to receive the holiday pay. Often the employer will also require that the employee works the days leading up to and following the holiday in order be eligible for the holiday pay.

5. If a pay day falls on certain holidays, and the employer is closed, the employer may process payroll on the next business day.

If an employer is closed on holidays listed in the California Government Code, then the employer may pay wages on the next business days. The DLSE's website explains this, and other considerations, for the timing requirements for payroll. 

The holidays listed in the Government Code are as follows:

 

January 1 - New Year's Day

Third Monday in January - Martin Luther King Jr. Day

February 12 - Lincoln's Birthday

Third Monday in February - Washington's Birthday

Last Monday in May - Memorial Day

July 4 - Independence Day

First Monday in September - Labor Day

Second Monday in October - Columbus Day

November 11 - Veterans Day

Fourth Thursday in November - Thanksgiving Day

Day after Thanksgiving

December 25 - Christmas

5 Critical Components For An EEOC Position Statement

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When faced with a charge from the U.S. Equal Employment Opportunity Commission (EEOC), one of your first steps will usually be to respond with a "statement of position." The position statement allows you to tell your side of the story, but many employers fail to include some of the most vital information. Below are some important sections that you should provide.

1. The company overview. Some employers delve right into the issue without discussing and considering the company image. The overview of the company is an opportunity for the company to represent itself as a responsible employer.

2. Your commitment to the equal employment opportunity (EEO) principles. You can show your commitment to EEO principles by directing attention to compliant policies, procedures and training in the employee handbook.

3. The nature of the importance of the job in question. Provide an explanation of what can happen if the job at issue is not done well or not done at all. Point out that it was not possible to keep someone in that role whose performance fell short of the expectations. Make it clear as to why the charging party's actions (specifically the actions that resulted in him/her being fired) were not acceptable for that position. By doing so, you show that the termination was taken seriously.

4. An overview of the charging party's initial employment, including his/her acknowledgement of your policies, handbook and procedures. Explain why the charging party was hired. Note that the discriminatory factor (whatever that may be) could not have been an issue as the employee was hired for the position because he/she appeared to be qualified. Also, note that the employee acknowledged the company policies, attended training, etc.

5. Your own story. It is important to give your side of the story - not just refute the story of the charging party. Be sure to describe what happened, how you responded and why.

Remember: You want to show that your company is a good company that is simply clearing up a misunderstanding.

- California Employer Advisor

Five Answers To Common Questions About Severance Pay And Severance Agreements

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Severance pay is not required by California law. However, employers who have possible disputes with employees that are leaving should consider offering severance pay in exchange for a signed severance agreement containing a release of claims against the company. This may help the employer avoid a costly lawsuit. Below are answers to five common questions regarding severance.

1. Are employers required to give employees severance pay?

No. If the employee is an at-will employee, the employer is not required to provide severance pay regardless of who ended the employment relationship.

2. Why do employers offer severance pay if it is not required?

There are numerous reasons that employers offer severance pay. If an employer's business has slowed down and needs to layoff employees, the employer may offer severance pay to make the transition smoother for the employee. Also, employers who believe that there is a possible dispute between it and the employee may offer severance pay in exchange for a signed severance agreement. The agreement, if done correctly, can help the employer avoid a potential lawsuit, as the employee would be waiving all and any claims that he/she may have against the company.

3. Is the employer required to pay the employee for a release of claims?

If the employer is asking an employee to release all claims they have against the company, generally the employee should receive something of value in exchange for the release. Although it is common, the severance provided to the employee is not required to be in the form of a payment, but must be something of value agreed upon by both parties.

4. What terms are generally included in a severance agreement?

  • A general release with a Civil Code Section 1542 waiver releasing all known and unknown claims
  • Confidentiality
  • No admission of liability
  • No present or future employment
  • Non-disparagement clause which can also set forth what job reference, if any, will be given to any prospective employers
  • Return of company property and non-solicitation of customers clause

5. Are there any specific considerations required in a release for employees 40 years old or older?

Yes. Individuals 40 years old or older are protected by the Older Workers Benefit Protection Act (OWBPA). The OWBPA has certain requirements for a release of claims in order to prevent age discrimination. The requirements include that the employee is advised to consult with an attorney, the waiver is easy to understand, the individual is provided a minimum of 21 days to consider the agreement, and the individual is given a minimum of 7 days following his/her acceptance of the agreement to revoke the agreement. Although the employee can waive the 21 day consideration period, the 7 day revocation period can not be waived. It is important to consider not paying any money until the 7 day revocation period has expired. If a release is being offered to a group of employees, a longer consideration period as well as additional requirements may apply. It is strongly recommended that employers receive assistance from counsel to ensure employees 40 years old or older effectively waive any rights under the OWBPA.

 

- California Employment Law Report

Sins of Well- Meaning Supervisors

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It seems as though there are so many ways that your supervisors and managers can practically beg for a lawsuit even though they have the best of intentions. Here are just a few examples:

1. Making unlawful pre-employment inquiries: The supervisor may ask the applicant: Do you have any children? If so, will you have any daycare problems?

2. Delivering "dishonest" evaluations: Supervisors giving an employee a "satisfactory" rating even though the employee's work is poor because they avoid the discomfort of delivering a review that indicates poor performance. As a result, many legitimate actions taken against an employee based on poor performance would be questioned because the performance reviews are positive.

3. Too vague in discipline and performance write-ups: The supervisor may tell an employee that their performance is unacceptable, but not be specific in what areas are unacceptable. They often use Judgment words like "lazy". Again, too vague. They need to give specific examples of the unacceptable behavior.

4. Making rash disciplinary decisions: First of all, firing in anger isn't the way to handle employee issues. Second, you should never fire without carefully reviewing the circumstances with HR.

5. Making uninformed responses to medical leave requests: Realizing that dealing with employee requests for medical leave are frustrating and challenging, it is wise to curtail that frustration and respond professionally.

6. Not knowing and not enforcing policies: Supervisors and managers are on the front line for interpreting and enforcing your company's policies. But if they don't know the policies and the responsibilities associated with those policies, they might be setting you up for a lawsuit.

7. Letting problems fester: It's always tempting to ignore bad behavior from employees hoping it will go away or improve on its own. If you continue to do so, it looks as though you are condoning the behavior.

8. Making "side" agreements: First of all, side agreements are illegal and will lead to lawsuits since other employees didn't get the special treatment or privilege and they may sue. For example: a supervisor tells an employee that he or she can't pay for the extra work that employee is doing and offers to give them a dinner on the company account.

9. Making wage and hour mistakes: Remember: you have to track it, pay it and include bonuses in the "regular rate" for overtime calculations. You have to pay for all hours worked, even if the employee volunteers and many independent contractors are employees who need to be paid overtime. Also, many "exempt" employees have duties that do not meet the criteria for exemption.

10. Not realizing the "power" of the supervisor: if your supervisor invites an employee out for a drink after work, the employee may view that as an order. It can be seen as coercion or harassment in some situations. Because of the power the supervisor has over employees, it is especially egregious when it may seem as if that power is exerted over the employee.

Wage And Hour Litigation - Low Hanging Fruit For Plaintiffs' Attorneys

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Misclassification is a very hot issue these days, according to Attorney Deanna Brinkerhoff.  First, there is the issue of exempt and nonexempt.  We must always apply the salary basis test and the duties tests to double-check any decision about exemptions. The other challenge under misclassification is the independent contractor vs. employee problem. Among the factors that the U.S. Supreme Court has considered significant are:

  • The extent to which the services rendered are an integral part of the principal's business
  • The permanency of the relationship
  • The amount of the alleged contractor's investment in facilities and equipment
  • The nature and degree of control by the principal
  • The alleged contractor's opportunities for profit and loss
  • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor and
  • The degree of independent business organization and operation

Other factors that may suggest an independent contractor relationship are:

  • The person works for others
  • The person hires his or her own staff - if you do the hiring, it doesn't sound like an independent contractor relationship
  • The person pays his or her own business expenses
  • The person is given a project, not detailed how-to instructions

10 Simple Strategies to Avoid DOL's Wage/Hour Audits

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According to Susan Price, BLR's Legal Editor, these 10 strategies will help prevent or handle a wage and hour investigation:

1. Avoid unfair compensation practices. Be sure that your employees are compensated in a consistent manner. If your pay practices are consistent, complaints are less likely to arise and you will be in a better place if the DOL does launch an investigation.

2. Understand the regulations. It is important that employers take the time and make a concerted effort to understand and familiarize themselves with the FLSA (Fair Labor Standards Act). It's the law, and if you fail to follow the law, you may face litigation or a DOL audit.

3. Train your managers. Managers need to be fluent in the language of FLSA.

4. Analyze state vs. federal law. You need to follow the state law if the federal law conflicts with the state.

5. Pay past overtime due. If it is determined that an employee is wrongly classified as exempt, the employer should determine how many overtime hours the employee has worked in the past 2 years, then pay the employee the overtime due. Paying past overtime due to employees now will be far less expensive than paying them in a DOL settlement.

6 .Respond to internal complaints expeditiously. If an employee files a wage and hour complaint internally, the employer should take it seriously. Since many investigations are prompted by an employee's complaint, employers might be able to prevent an investigation by addressing an employee's initial internal complaint.

7. Seek compliance assistance from HR Advisors or your labor attorney.

8. Conduct a self-audit. Employers should demonstrate their willingness to cooperate with the DOL investigators and to adjust their procedures and policies as necessary to avoid violations in the future.

9. Cooperate. Employers should demonstrate their willingness to cooperate with DOL investigators and to adjust their procedures and policies as necessary to avoid violations in the future.

10. Keep accurate records. Employers are required to make, keep, and preserve employees' records including wages earned and hours worked, for a specified period of time. Records must include certain identifying information about each employee and accurate data about the hours worked and wages earned.

Minimum Wage Increase Takes Effect July 1, 2014

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A friendly reminder to all clients! The first phase of the minimum wage increase takes effect July 1, 2014, and will increase the mandated minimum wage from $8.00 to $9.00 per hour. Also effective July 1, 2014, the following revised posting and notice requirements take effect in California:

  • Employers must prominently display a poster showing the new, $9.00 per hour, minimum wage.
  • Employers must start using an updated Workers’ Compensation brochure containing new pre-designation regulations. Employers must provide their employees, at the time of hire or by the end of the first pay period, with the Workers’ Compensation brochure.
  • Employers must start using updated Paid Family Leave brochures containing new family member definitions, which now include grandparents, grand-children, siblings, and parents-in-law. The brochures should be provided to new hires and to employees who take a qualifying leave.

California’s wage orders generally require that any employee classified under the executive, professional, or administrative exemptions be paid a salary of not less than twice the prevailing minimum wage. Under the current minimum wage laws, that means exempt employees must be compensated based upon an annual salary of not less than $33,280. However once the minimum wage increase takes effect on July 1, 2014, exempt employees will have to be compensated based upon an annual salary of not less than $37,440.

Certain employees – such as those who are required to provide their own tools to perform the functions of their job may also be affected by the minimum wage increase.

HR Advisors has mailed out updated posters. Please replace your current poster with the updated version. We will be sending out the updated Paid Family Leave (PFL) and Workers’ Compensation (WC) pamphlets as soon as we receive them. If you have any questions, please contact us immediately so we may assist you.

Six Steps to Avoid Retaliation Claims

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According to HR Daily Advisor, retaliation suits are the "dumbest of the dumb" because they are so easily avoided but they happen with startling frequency! Here are some tips from Attorney Joan S. Farrell:

1. Have a written policy. As the backbone of your entire program, initiate a policy prohibiting retaliation.

2. Provide training.  Just having a policy isn’t enough.  Provide training to supervisors and managers about what retaliation consists of and how to avoid it. Basically, retaliation is any action that would dissuade a reasonable worker from engaging in protected activity.

3. Don’t’ terminate employees when you’re “fired up”.  Managers and supervisors need to understand that anger should not dictate employment decisions. Managers need to do whatever it takes to cool down and stay cool.  Part of their job is to act responsibly and professionally, even in the face of false accusations.

4. Clarify protocols for supervisors.  Provide training and refreshers so supervisors know how to react when they receive a complaint from an employee.  A supervisor typically is the first person to receive harassment complaints from employees and his or her response is critical in resolving and defending workplace discrimination claims.

5. Apply policies and practices consistently.  Selective enforcement of policies can support a claim of discrimination and retaliation, especially if enforcement is stepped up right after an employee files a complaint.  If an employer departs from its usually policy or practice, the legitimate, nondiscriminatory reason for the exception should be documented.

6. Publish your complaint reporting procedure.  Post them conspicuously and encourage employees to report any retaliation using the same complaint procedure.

If you are interested in an in-depth discussion on these topics or if you need assistance in the above-mentioned areas, please contact HR Advisors.

Sins of Wage and Hour Management

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Wage and hour management should be simple but it's not! Here are some common "sins" as discussed in the HR Daily Advisor:

1. Failure to pay the minimum wage - All employees are entitled to receive at least the minimum wage for all hours worked. Special arrangements may be made for some positions (like wait staff as long as tips put them above the minimum wage) and in specific training situations.

2. Failure to pay for all hours worked - Employers must pay non-exempt employees for all hours worked, even if the employee has volunteered to do the work without pay, and even if you have forbidden the employee to do work. In that case, you will discipline the employee, but you still have to pay for the hours worked. Some violations are blatant, like “clock out and continue working” but some are not so obvious. For example, expecting non-exempt workers to take customer calls off hours, or insisting that they answer the phones during an unpaid lunch break.

3. Misclassifying as exempt - Employers sometimes want to classify workers as exempt to avoid paying overtime and/or to avoid paying for extra hours worked. Unfortunately, an employee’s title doesn’t mean anything, and the fact that the person is paid on a salary basis doesn’t mean anything – it is the job duties that determine whether a worker is exempt or not. There are very specific guidelines from the Department of Labor for the main types of exemptions – administrative, executive, creative, and outside sales.

4. Forgetting state law - California law: overtime is one and one half the employee’s regular rate for hours worked in excess of 8 hours a day or for the first 8 hours worked on the seventh consecutive day worked in a workweek and over 40 hours in one week. Double time must be paid for hours worked in excess of 12 in a workday or worked in excess of 8 on the seventh consecutive day worked in any workweek. All travel time is paid time (under federal law, only travel time that coincides with the normal work day is compensable).

5. Making "side agreements" - An employer tells an employee to work off the clock this week and he will make that up to them next month. Agreements like this violate the FLSA. Employees cannot waive their right to overtime or pay for hours worked – even if they agree, even if they are eager to help out by doing a little work on the side without pay.

If you are interested in an in-depth discussion on these topics or if you need assistance in the above-mentioned areas, please contact HR Advisors.

 

"Image courtesy of Freedigitalphotos.net"

The Dangers of Inconsistency and Retaliation

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What are the dangers of inconsistency and retaliation?

If an employee has violated the law or your employment policies, you should follow your general disciplinary policies and procedures in making decisions regarding disciplinary action.

Your disciplinary action should include:

  • Ensure that the appropriate discipline is applied (the punishment should fit the crime)
  • Ensure that discipline is consistent for all employees
  • Give employees fair warning that they have violated company policies
  • Give employees an opportunity to improve
  • Create a paper trail of evidence to show what the employee did and how you responded

Be sure you follow your disciplinary action system consistently. Disciplining some employees but not others for the same types of problems is just asking for a discrimination claim.

Watch out for retaliation.

Almost all of the federal employment laws prohibit retaliation against employees who exercise their rights under those laws. That includes the employment discrimination statutes as well as other laws granting protections to employees, such as the FMLA (Family and Medical Leave Act), the FLSA (Fair labor Standards Act) and many more.

In general, retaliation is any adverse action that is taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a federal employment law. The most common types of retaliation claim involves an employee who alleges he or she was fired for complaining about harassment or discrimination.

Double check.

If you make the wrong decision about termination for someone, a growing number of courts say that when an employee claims he was wrongfully discharged for misconduct, the issue isn’t whether he is guilty but whether you reasonably believed he was guilty.

Document everything!

No matter how honest and fair your disciplinary procedures or evaluations are, it won’t mean much in court without clear documentation to support your decision.

If you are interested in an in-depth discussion on these topics or if you need assistance in the above-mentioned areas, please contact HR Advisors. 

 

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