Tips for Drafting Preemployment Offer Letters

Question:

Looking forward to 2022, I anticipate hiring more employees and am curious what to include in our offer letter to potential new employees?

Answer:

Offer letters are a valuable way to inform a potential new employee about their new job and the conditions of employment.  A properly written offer letter can minimize later misunderstandings about the nature of the job.  The pre-employment offer letter should include specific details about 1) the job duties and schedule, 2) compensation, 3) at-will employment status, and 4) any pre-employment conditions that apply to the offer.

The pre-employment offer letter should include details about the job title, the general work schedule, and anticipated starting date.   For example, indicating that the job will primarily have an overnight work schedule allows potential employees to consider their willingness to work that schedule and avoid misunderstandings about scheduling expectations.  Given the COVID-19 pandemic, you may also want to identify whether the work is remote, in the office, or a mix of both. Attaching an accurate job description is recommended.

Next, the pre-employment offer letter should set forth the pay rate and benefits, and whether the position is exempt or nonexempt.  This informs the potential employee the extent to which state and federal employment laws will apply to the job.  This classification may impact issues such as overtime and meal and rest breaks. Given the importance of this classification, consult with counsel if you have questions about the exempt or nonexempt classification of a position. The pay rate is most frequently indicated as an hourly rate or annual salary.  It is important to maintain consistency in the pre-employment offer letter, so if the compensation is an hourly rate, then state the hourly rate instead of an estimate of the annual compensation.

Indicate whether the position is full- or part- time, and generally the number of hours the candidate can expect to work each week.  This classification is important for indicating the potential benefits available to an employee.  For instance, part-time employees are often ineligible for benefits such as insurance and accrued vacation.

Employment in California is generally considered at-will, meaning the employee or the employer may end the employment relationship at any time, with or without cause.  If the position is at-will, then it is important to explicitly state it is an at-will position and include the explanation of at-will status so there is no confusion about a promise of continued employment.

The pre-employment offer letter should also indicate any conditions placed upon the job offer.  For example, California recently enacted the Fair Chance Act which prohibits employers from inquiring about an applicant’s criminal history until after a conditional employment offer.  Use the pre-employment offer letter to set forth all of the applicable conditions that must be satisfied before employment begins, such as passing a post-offer medical exam, a post-offer drug test, or post-offer reference and/or background check.

Finally, include a deadline for the individual to accept the job offer by returning a signed copy of the offer letter, and indicate that the offer will be considered withdrawn if not accepted by the deadline.  You should include at the end of the letter an acknowledgment and acceptance for the job candidate to sign showing an understanding of and acceptance of the offer.  Properly drafted offer letters can help start the employment relationship with a new employee on the right path.


COVID-19 Workplace Rules for 2022

Question:  I run a small business, and we are complying with the new state mask order.  Are there other COVID-19 workplace guidelines that are still in effect for 2022?

Answer: Yes.  Employers must continue to comply with the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (the “COVID-19 ETS”).  On December 16, 2021, the Occupational Safety and Health Standards Board revised the COVID-19 ETS for the second time. The revised COVID-19 ETS apply to most workers in California and take effect on January 14, 2022.  The most significant revisions include the following:

  • Face Coverings: The definition of a “face covering” is updated to include more detail on the different types of acceptable face coverings.  If an employee is exempt from wearing a face covering because of a medical condition and cannot wear an approved alternative, the employee must stay at least 6 feet apart from others and either be fully vaccinated or be tested for COVID-19 at least once per week.
  • Testing and Exclusion: Under the current rules, if a fully vaccinated employee has a “close contact” with an infected person at work, the employee does not need to quarantine unless the employee develops COVID-19 symptoms.  The revised ETS imposes additional requirements on fully vaccinated employees who are asymptomatic. Such employees can  remain at work after a “close contact,” but they must maintain 6 feet of distance from others and wear a face covering for 14 days after their last close contact.  Also, employers are now required to offer COVID-19 testing to “close contacts” regardless of vaccination status and regardless of whether the employee is symptomatic or not.  “Close contact” continues to be defined as “being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high risk exposure period.”
  • Return to Work Criteria: The revised ETS expands the period of time before an employee can return to work after a “close contact” from 10 days to 14 days.  However, even under the revised ETS, employees can return sooner in some situations.  For example, an employee can return to work 7 days after the last close contact if the employee has a negative COVID-19 test that was taken at least 5 days after the close contact.  If the employee returns to work sooner than the 14-day quarantine period, the employee must maintain 6 feet of distance from others at work and wear a face covering for at least 14 days following the last date of close contact.

Some important requirements in the COVID-19 ETS remain unchanged.  Employers must continue to maintain an effective COVID-19 Prevention Program that includes identifying and evaluating employee exposures to COVID-19 health hazards, training employees on how to prevent hazards, and implementing procedures to correct unsafe conditions.  Also, employers must continue to properly notify certain employees of possible COVID-19 exposures within one business day.

In addition to the COVID-19 ETS, employers must continue to follow various federal and state public health orders on COVID-19.  The latest order from the California Department of Public Health requires the use of face coverings by all employees when indoors, from December 15, 2021 through January 15, 2022.  Also, there are still numerous federal and state vaccination mandates with which employers may need to comply.

Businesses should promptly review and update their written COVID-19 Prevention Plan to comply with the revised ETS and continue to monitor changing mandates related to COVID-19.  To view the revised ETS, visit: https://www.dir.ca.gov/OSHSB/documents/Dec162021-COVID-19-Prevention-Emergency-txtcourtesy-2nd-Readoption.pdf


Legal Considerations for Holiday Merriment

Question: This year, my company would like to celebrate the holidays by hosting a holiday party for our employees and their families – just like we did prior to 2020. Is that an option this year?

Answer: The widespread availability of COVID-19 vaccines has certainly given us reason to feel festive and ready to interact with coworkers in person once more, and many local employers have decided to celebrate their employees, and the season, with in-person gatherings. There are some precautions you can take to ensure a safe and festive holiday party and minimize the risk of exposure to COVID-19 – not to mention the usual concerns of minimizing the risk of harassment and discrimination claims at holiday parties.

While last year’s parties were almost exclusively virtual, declining COVID-19 cases, rising vaccination rates, and the arrival of booster shots are allowing for more in-person gatherings this year. In evaluating whether an in-person holiday party is appropriate this year, employers should include a risk assessment of COVID-19 in the workplace and identify the controls needed to reduce the risk. The Centers for Disease Control (“CDC”) has issued guidance for organizing events and gatherings to assist employers in their decision. Employers should consider whether to hold an indoor or outdoor event, whether to require masks indoors, and whether to require proof of vaccination status.

Whatever safety precautions you may plan to require of your employees, precautions you can take with their family members, with whom you have no legal relationship, are far less straightforward. Many employers mandate their employees receive the COVID-19 vaccine, but employees’ family members may not be vaccinated. Employers will need to decide whether to require proof of vaccination status to attend an event, and should establish clear protocols to distribute to employees prior to the party. In general, outdoor events are safer for larger gatherings, but this may be a year for limiting the holiday party to your employees.

Another consideration is that with the cancellation of last holiday season’s parties, some employees may be feeling more jolly than usual at an in-person gathering – especially if alcohol is served. A common issue at holiday parties that may lead to liability for harassment is the consumption of too much alcohol, which results in decreased inhibitions and increased risk of offensive or unlawful conduct. To avoid such consequences, employers may decide to avoid serving alcohol, or limit the number of drinks by providing one or two drink tickets to employees and guests. Employers may also designate an exempt manager to discreetly observe the behavior of employees and guests to make sure everyone is having a fun and safe party experience.

Employers should also be sensitive to potential religious harassment or discrimination at holiday parties. Employees may be from different cultural or religious backgrounds that do not celebrate the same holidays, or do not celebrate the holidays the same way. To make all feel welcome, avoid decorations, greetings, or toasts that are religious, and offer different menu and drink options for guests who do not eat or drink certain foods for cultural or religious reasons.

No matter what you decide to do, remember that many employer sponsored holiday parties take place each year without incident. If you decide to host a party, make sure your employee handbook, harassment policies, and COVID-19 protocols are up-to-date and that all employees adhere to your policies.  Then enjoy the celebration with your staff.


Hybrid Work Models and Virtual Meetings

Question:  Our office has re-opened, and some of our employees who were working remotely want to continue to do so all or part of the time.  What are the legal implications of a worksite with employees working remotely and on-site?

Answer:  A December 2020 Pew Research Center study found that after the pandemic started in the U.S. in March 2020, approximately 70% of employees worked remotely. A September Gallup update of employment trends showed that now, approximately 45% of full-time U.S. employees work remotely either all (25%) or part of the time (20%).  It also showed that 70% of employees working a hybrid model, splitting their time between working at home and in the office, prefer to keep that schedule.  This major shift presents challenges for employers who must balance their desire to return to “business as usual,” their employees’ needs, and the continuing risks posed by COVID-19.

Legal and Safety Considerations

Employers who allow employees to work a hybrid model must comply with laws for both remote and on-site workplaces. For example, in California, for employees working on-site, employers must follow the COVID-19 Prevention Emergency Temporary Standards, which address issues such as when face coverings must be worn, responding to cases of COVID-19 in the workplace, and reporting requirements.  To further complicate matters, some counties and cities have their own COVID-19 related ordinances.  Employers must ensure that all employees working on-site, full or part time, follow these rules when working on-site.

For employees working any time remotely, employers must address telecommuting issues such as timekeeping, meal and rest breaks, remote workspace safety, attendance, confidentiality, and protection of company property, networks, and data.  Employers should have a well-defined remote work/telecommuting policy that addresses these issues. The policy should also address privacy issues, such as recording virtual meetings. In California, it is a crime to record a “confidential communication,” including a private conversation or telephone call, unless all parties to the conversation consent.  The remote work policy should clearly convey that when working remotely, employees must continue to comply with all workplace policies.

If employees are reluctant to return to the workplace due to concerns about in-person meetings, an employer can provide employees with the option of attending in-person, with masks if they so choose or if current regulations require them, or via videoconference from their office. Because COVID-19 workplace safety requirements for business owners are constantly changing, a workplace that integrates physical spaces with videoconference technology can more easily adapt to the changing safety rules, while still allowing employees to work in the office.

Recruiting 

Employers are also rethinking the job interview process, and many have successfully adapted to virtual recruiting.  This transition by employers to a hiring process that combines virtual and in-person interviews is likely a permanent change due to the cost and time savings to employers and applicants. Virtual interviews save applicants the travel time and expenses, and give employers more flexibility in scheduling and a larger applicant pool.

An employer’s virtual interviewing practices must comply with federal and state employment and discrimination laws. As such, employers should always remain flexible and provide applicants with the option of an in-person interview if preferred.

The COVID-19 pandemic has changed traditional ideas of work.  While adapting to this new world, employers must continue to be aware of legal implications and the need to have policies that they and employees can follow.


Fenton & Keller - October Newsletter

Scary News in Employment Law

Spooky expansion of Cal-OSHA enforcement

Cal-OSHA will create two new violation categories – “enterprise-wide” and “egregious.” Effective January 1, 2022, Senate Bill (SB) 606 expands the enforcement authority of the California Division of Occupational Safety and Health (Cal-OSHA) by creating two new violation categories for which Cal-OSHA can issue citations ... [CONTINUE READING]

Beware of terms in severance and settlement agreements

Expansive restrictions on non-disclosure provisions in settlement and severance agreements. Effective January 1, 2022, Senate Bill (SB) 331 will prohibit settlement agreements that prevent or restrict an employee from disclosing factual information related to the employee’s claims of sexual assault, harassment, discrimination, or retaliation. A settlement agreement that contains a provision that ...  [CONTINUE READING]

Alarming fines for workplace posting violations

State and federal laws require employers to post specific information and notices in an area frequented by employees where they may be easily read during the workday. Additional posting requirements may apply to your workplace depending on your industry. Monetary penalties are assessed for failing to  ... [CONTINUE READING]

Frightful case regarding the regular pay rate

Significant change in law regarding payment of meal and rest period penalties. In July 2021, the California Supreme Court issued a decision that impacts all employers who pay non-exempt employees an hourly rate plus non-discretionary payments made for work performed by an employee, including ...  [CONTINUE READING]

Enchanting refinements to California Family Rights Act

Leave is allowed to care for a parent-in law. The California Family Rights Act (CFRA) requires employers with 5 or more employees to provide up to 12 weeks of unpaid family care and medical leave to employees who have worked for the employer for more than 12 months, and who have worked at least 1,250 hours in the year before leave begins. Assembly Bill (AB) 1033 corrects a drafting error by ... [CONTINUE READING]

Rising minimum wage and exempt salary standards

On January 1, 2022, the California minimum wage will increase to $14.00 per hour for employers with 1-25 employees, and $15.00 per hour for employers with 26 or more employees. The minimum salary for exempt employees will increase January 1, 2022 as follows ...  [CONTINUE READING]


We are honored to be voted the Best Law Firm in Monterey County  for the sixth year in a row.

Thank you for your continued confidence in our ability to provide excellent, cost effective legal services to our valued clients and the community.


Vaccine Mandate for Federal Contractors

Question: I read that President Biden issued an order mandating COVID-19 vaccinations for employees of federal contractors. How do I know if that order applies to my business, and what must I do to comply with it?

Answer: On September 9, 2021, President Biden issued Executive Order 14042 (the “Order”), which requires federal executive departments and agencies to include a clause in their applicable federal contracts that federal contractors, and the contractor’s subcontractors, must comply with COVID-19 guidance issued by the Safer Federal Workforce Task Force (the “Task Force”).  Notably, the Task Force requires that covered contractors must ensure that all its employees are fully vaccinated for COVID-19, unless an employee is legally entitled to an accommodation.

The Order applies to federal contracts regarding services, construction, concessions, or leases, but does not apply to grants, contracts with Indian Tribes, contracts less than $250,000, employees who perform work outside the United States, or subcontracts solely for the provision of products.

The Order applies not only to the direct federal contractor, but also to every subsequent subcontractor to the covered contract, until the point where the subcontractor solely provides products.  The Order relates to both large and small businesses.  The Task Force’s guidance also “strongly encourages” that covered contractors incorporate similar vaccination requirements into their contracts with other entities that may not be covered by the Order.

Under the Task Force guidance, covered contractors must verify that their covered employees are fully vaccinated.  However, a covered contractor may be required to provide a reasonable accommodation to employees who cannot be vaccinated due to a medical disability or a sincerely held religious belief, practice, or observance.  Covered contractors must verify an employee’s vaccination status based on a physical or digital copy of the employee’s immunization record from a health care provider or pharmacy; COVID-19 Vaccination Record Card; medical records documenting the vaccination; immunization records from a public health or State immunization information system; or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering vaccine.  On November 4, 2021, President Biden extended the deadline for employees of federal contractors, and their subcontractors, to have received their final COVID-19 vaccination dose from December 8, 2021 to January 4, 2022.

Covered contractors must ensure that all covered employees and visitors comply with published guidance from the Centers for Disease Control (“CDC”) regarding masking and physical distancing at all covered contractor workplaces.  Contractors must also ensure that all individuals who are not fully vaccinated maintain a distance of at least six feet from others, consistently wear an appropriate mask in common areas, shared workspaces, and crowded outdoor settings, consistent with CDC guidance.

Covered contractors must designate one or more people to coordinate the implementation of, and compliance with, the Task Force’s guidelines.  This includes ensuring that employees provide the proper proof of vaccination documents.  The individual(s) must also coordinate the communication of required COVID-19 safety protocols to covered employees, and the masking and distancing requirements to visitors.

Direct federal contractors or their subcontractors may begin seeing the required compliance language in their new federal contracts.  If Executive Order 14042 applies to your business, now is the time to appoint one or more individuals to familiarize themselves with the Task Force’s guidelines and coordinate your business’s compliance with those guidelines.   The guidelines can be seen at the following link: Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov).


COVID-19 Safety

To our valued clients and community members,

We write to update you regarding Fenton & Keller’s continuing commitment to provide legal services to address your needs during this time. We are available in the office, and remotely, to provide legal services to address our clients’ needs and are complying with current COVID-19 safety procedures.

The well-being of our employees, clients, business partners and community remains our constant priority. We remain receptive to any suggestions that would make you more comfortable while working with us. We value our relationship with you and are committed to staying connected and helping you through this time.

Best Regards,

The shareholders of Fenton & Keller


Best Law Firm Accolades

In its Best Of 2021 edition, the Monterey County Weekly announced that its readers have once again voted Fenton & Keller the Best Law Firm in Monterey County.  This is the sixth consecutive year Fenton & Keller has received this honor.

The Weekly had this to say:

Maybe finding a lawyer sounds like something you don’t want to deal with – think about it instead as finding a trusted adviser, aka finding the “right” lawyer. At Fenton & Keller, which specializes in services ranging from environmental to personal injury law and tax to employment law, it’s fair to say that you’re in good hands. This team of two dozen lawyers put their minds and experience together and can give you the advice and representation you need. Besides readers’ vote, they have another seal of approval: They’ve been at it for 65 years.

In addition, the Monterey Peninsula Chamber of Commerce recently announced that their members have voted Fenton & Keller as the Best Law Firm in Monterey County for 2021 during their annual Business Excellence Awards ceremony. The Chamber noted that they are, “proud to host premier events that increase public awareness of the vital role business plays on the Central Coast and give recognition to those businesses that have achieved excellence in their fields.”

We are grateful to the readers of the Monterey County Weekly and members of the Monterey Peninsula Chamber of Commerce for honoring and expressing their confidence in our firm in this way.  We are also grateful to our clients for trusting in us and allowing us to serve their changing legal needs for over 65 years!


Makeup Time Provides Flexibility for Employees

Question: My employee took a few hours off earlier in the week for an appointment and is now asking if she can make up that time on another day this week.  Since she works 8-hour days, if I approve her request, this will push her into overtime.  Is there a way to avoid those overtime obligations in this situation?

Answer: When implemented properly, employers can allow employees to make up lost work time without incurring overtime.  Generally, if a non-exempt employee works over 40 hours during a workweek or over 8 hours in a single workday, the employee must be paid overtime compensation.  However, “makeup time” provides an exception to the overtime requirements, allowing scheduling flexibility for employees.  California Labor Code Section 513 permits an employer to adopt a makeup time policy and approve employee written requests to make up work time lost because of the employee’s personal obligations.  The employee makes up the time by working those hours on another day in that same workweek.  The makeup time will not count as daily overtime if it causes an employee to work more than 8 hours in a workday, so long as the makeup time is worked in the same workweek in which the work time was lost, and the employee does not work more than 11 hours in one day or 40 hours in one workweek.  Employees must submit in advance a signed written request for each occasion that the employee wishes to make up lost work time.  Employers cannot encourage or otherwise solicit employees to use makeup time, and they have discretion to deny a request.

For example, if an employee who normally works Monday through Friday, 8 hours per day, requests 3 hours off on Tuesday to go to a personal appointment, the employee can then make up the time by working 11 hours on another day that workweek, or by working 1 extra hour on Wednesday, Thursday, and Friday, all without accruing overtime.  Time records should specify what hours are makeup time and what hours, when applicable, are overtime.  When determining how to properly categorize hours worked, employers must follow their definition of a workweek.

If employers choose to allow makeup time, they must have a written policy that complies with the requirements of Labor Code section 513 and sets out clear instructions and requirements for employees.  Employers should consider the following when implementing a makeup time policy:

  • Make clear to employees that all makeup time requests must be in writing and submitted for approval in advance.
  • Determine the amount of advance notice required for makeup time requests.
  • Determine how to handle situations where an employee takes time off and requests makeup time, but then cannot make up the time.  Will the time off be unpaid, or will sick or vacation time be applied?
  • Verify your Company’s definition of a workweek.  If an employer does not have a defined workweek, the state Labor Commissioner will presume it is Sunday through Saturday from 12:01 am to midnight.
  • Decide whether there will be a limit on employees’ use of makeup time to avoid overtime liability.

Employers should also prepare the written request form that must be filled out each time an employee wishes to request makeup time.

By following these rules, employers can allow employees some flexibility for personal obligations during the workweek and avoid incurring overtime.


Minimum wage and exempt salary standards for 2022

Minimum wage. On January 1, 2022, the California minimum wage will increase to $14.00 per hour for employers with 1-25 employees, and $15.00 per hour for employers with 26 or more employees.

Exempt salary minimums. The minimum salary for exempt employees will increase January 1, 2022 as follows:

  • Employers with 1-25 employees: $58,240 per year.
  • Employers with 26 or more employees: $62,400 per year.
  • Computer professionals: $50.00 per hour; $8,679.16 per month; $104,149.81 per year.
  • Licensed physicians and surgeons: $91.07 per hour.

Alarming fines for workplace posting violations

State and federal laws require employers to post specific information and notices in an area frequented by employees where they may be easily read during the workday. Additional posting requirements may apply to your workplace depending on your industry. Monetary penalties are assessed for failing to post required notices.

The maximum penalty for federal posting violations is now going up by more than $400 under the increases announced by the Department of Labor – highlighting the seriousness about posting compliance.

Some of the new maximum fine amounts are:

  • Family and Medical Leave Act (FMLA): $178
  • Equal Employment Opportunity Commission (EEOC): $576
  • Job Safety and Health: It's the Law (OSHA): $13,653
  • Employee Polygraph Protection Act (EPPA): $21,663

Emailing required notices to employees permitted beginning January 1, 2022. To address the prevalence of remote work caused by the COVID-19 pandemic, a new California law, Senate Bill (SB) 657, allows employers to post and email required notices to employees. However, email distribution does not alter the employer’s obligation to physically display the required postings in an area frequented by employees where they may be easily read during the workday.


Frightful case regarding the regular pay rate

Significant change in law regarding payment of meal and rest period penalties. In July 2021, the California Supreme Court issued a decision that impacts all employers who pay non-exempt employees an hourly rate plus non-discretionary payments made for work performed by an employee (including service charges, commissions, non-discretionary bonuses, shift differentials, or piece rate.)  The holding in Ferra v. Loews Hollywood Hotel states that employers must pay the one-hour meal or rest period penalty at the “regular rate,” which includes the employee’s hourly rate and the non-discretionary payments made to the employee in the work week in which the meal or rest period penalty is paid.

Now, when paying the meal or rest period penalty to non-exempt employees who earn non-discretionary payments, employers must determine the “regular rate” of pay by taking the total wages earned for the workweek, i.e., base hourly wage x hours worked + additional non-discretionary payments, and dividing that amount by the hours worked in the workweek. This Supreme Court decision is retroactive. This means that the decision applies to past practices and penalties that have already been paid, subject to claims that are barred by the three-year statute of limitations.

This “regular rate” calculation also applies to payment of HWHF sick leave and COVID-19 sick leave. The same exposure exists when it comes to payment of the California mandatory sick leave under the Healthy Workplace Healthy Family Act (HWHF), which must also be paid at the employee’s “regular rate.”  If a non-exempt employee receives an hourly wage plus non-discretionary pay and takes HWHF sick leave in a workweek for which the employee received such non-discretionary pay, the employer must calculate the employee’s “regular rate,” including those additional forms of pay, and pay the HWHF sick leave at the higher, adjusted “regular rate.”

The Labor Code states that this calculation may be made either for the workweek in which the paid sick leave was taken or by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.  A similar calculation was also required for sick leave taken pursuant to California’s COVID sick leave requirements, although the COVID-19 sick pay requirement expired September 30, 2021.

What should you do now?

  1. Examine your compensation methods and consider eliminating non-discretionary pay.
  2. Strictly comply with the meal and rest period rules. Make sure you have a compliant meal and rest period policy, and document if an employee voluntarily skips or takes a short meal or rest period.
  3. When paying the meal or rest period premium or HWHF sick leave to employees who are paid an hourly rate plus non-discretionary payments, make sure to correctly calculate the “regular rate” for payment of the meal/rest period penalty or the sick leave hours. Make sure your payroll service understands this calculation and is paying the correct “regular rate.”
  4. When paying out HWHF sick leave or meal/rest period penalties at the “regular rate,” show the payment as a separate line item on the employee’s paystub.
  5. Determine what to do about prior payments of HWHF sick leave, COVID-19 sick pay, and meal/rest period penalties.