Marco A. Lucido

New Model Template for Workplace Violence Prevention Plans

Question: I heard my business needs to establish a workplace violence prevention plan by July 1, 2024.  Is this a new requirement, and are there any guides or templates to help me get started?

Answer: Yes, this is a new requirement.  Beginning on July 1, 2024, most businesses will need to establish a workplace violence prevention plan and comply with other workplace violence measures.  Other than a few limited exceptions, the new workplace violence prevention requirements apply to all employers in California.  Fortunately, Cal/OSHA recently published a fact sheet and a model workplace violence prevention plan to help employers comply with the new law. 

The workplace violence prevention plan can be included in an employer’s existing Injury and Illness Prevention Program (IIPP) or maintained as a separate document.  It must be in writing, easily accessible by employees, and contain the following information:

• The identity of the individuals responsible for implementing the plan;
• Procedures to obtain the active involvement of employees in developing and implementing the plan;
• Methods used to coordinate the plan with other employers, when applicable;
• Procedures for the employer to accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who makes such a report;
• Procedures to ensure that employees comply with the plan;
• Procedures to communicate with employees regarding workplace violence matters, including how to report incidents and how reports will be investigated.
• Procedures on how to identify and evaluate workplace violence hazards and how to respond to actual or potential workplace violence emergencies.

Recently, Cal/OSHA published its much-anticipated model workplace violence prevention plan, which employers can access under the “Workplace Violence Prevention” heading here: https://www.dir.ca.gov/dosh/PubOrder.asp#WVP.  The model plan is designed to assist employers in drafting their own plans. Employers are not required to use Cal/OSHA’s model but may use it as a template. The model plan contains numerous questions and examples for employers to consider as they assess the risks in their own workplaces and “fill in the blanks” of the template accordingly.

In addition to establishing a workplace violence prevention plan, covered employers must also implement annual workplace violence training and maintain a log of every workplace violence incident.  The written workplace violence incident log must be posted at the workplace and include the following information:

• Date, time, and location of the incident;
• Detailed description of the incident, including where it occurred and the type of violence that occurred;
• Classification of who committed the violence (e.g. co-worker, supervisor; customer); and
• A description of the employer’s response and information about the person completing the log entry.

The covered employers must provide employees with initial training when the workplace violence prevention plan is first established and annually thereafter.  Records related to employee training, violent incident logs, and employer investigation of workplace violence incidents must be kept for at least five years.  Employees are entitled to free copies of these records within 15 calendar days of a request.

Cal/OSHA also published a fact sheet that provides employers with a helpful overview of the above requirements.  The fact sheet can be accessed using the same link listed above for the model prevention plan.  Employers should consult with their labor counsel soon to draft a compliant plan and implement measures to comply with these additional requirements before the July 1, 2024 effective date.

by Marco A. Lucido

New Year, New Minimum Wage

Question:  As a business owner, I normally update my staff hourly wages and salaries each January.  What is the minimum wage for 2024 and how does that impact my exempt salaried employees?

Answer:  Effective January 1, 2024, California’s minimum wage will increase from $15.50 to $16 per hour.  The $16 per hour minimum wage applies to all employers, regardless of employer size. Employers with operations outside of Monterey County should note that some cities and counties in California have a local minimum wage that is higher than the state rate. A list of California city and county minimum wage rates maintained by University of California Berkely is available here:  https://laborcenter.berkeley.edu/inventory-of-us-city-and-county-minimum-wage-ordinances/#s-2

The increase to the minimum wage is triggered by a 2016 law that tied minimum wage increases to inflation.  Under this law, all future increases to the minimum wage rate will be calculated by the California Department of Finance.  The minimum wage rate will be adjusted annually for inflation based on the United States Consumer Price Index for Urban Wage Earners and Clerical Workers (U.S. CPI-W).  Regardless of the CPI increase, the minimum wage rate will not be increased by more than 3.5 percent in any one year.  Also, if the change in CPI is negative, there will be no change in the minimum wage for the following year.

With the increase to the minimum wage rate, employers also need to ensure that the annual salary for their exempt employees meets the minimum salary requirements for an exempt employee.  Most exempt employees must be paid at least two times California’s minimum wage rate for full-time work.  Therefore, as of January 1, 2024, most exempt employees must earn an annual salary of at least $66,560.00.  Exempt employees must also satisfy a duties test to qualify as exempt.

Some exempt employees have unique minimum salary requirements.  For example, exempt computer professionals must be paid at least $55.58 per hour, $9,646.95 per month, or $115,763.35 annually.  Licensed physicians and surgeons must be paid a minimum of $101.22 per hour.  If otherwise exempt employees do not meet these minimum salary thresholds, they cannot be classified as exempt.  This means that such employees must be paid on an hourly basis, must track all of their hours worked, and are entitled to overtime pay and meal and rest periods.

The new minimum wage rate also triggers an employer’s obligation to notify affected employees, in writing, of the new rate by providing the affected employees with advance notice of the change to the employee’s rate of pay.  The notice must comply with the requirements of Labor Code section 2810.5. The California Department of Industrial Relations (“DIR”) publishes a notice that complies with this requirement.  This “Notice to Employee” can be downloaded for use at https://www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf.

Employers should ensure they are complying with California’s workplace posting requirements related to the new minimum wage rate.  The DIR publishes the required minimum wage poster, which can be downloaded at https://www.dir.ca.gov/IWC/MW-2024.pdf.  The poster is required to be posted in an area that is frequented by employees, like a breakroom.

To ensure compliance with California’s minimum wage rules, employers should make any necessary wage or salary increases effective January 1, 2024.  Employers with questions regarding the minimum wage increase or its impact on exempt employees should consult with their employment counsel.

by Marco A. Lucido

Mid-Year Check-In

Question: I try my best to stay up to date on new employment laws. I just realized that it’s already July and I’m wondering if there have been any recent changes and what I should expect heading into 2024.

Answer: In California, there is no off-season for employment law. This year, the Legislature, the Courts, and state and local regulators have been busy crafting new laws and regulations that may affect many employers. Below is a list of some recent developments, as well as some new potential laws on the horizon.

  •  Minimum Wage Rate Increases: Effective January 1, 2023, the minimum wage for all employers is $15.50. Many cities and counties have ordinances with higher minimum wage rates than California’s state minimum wage. Many cities and counties update their minimum wage rates mid-year. Effective July 1, 2023, the following localities will see increases to their minimum wage rates: Alameda, Berkeley, Emeryville, Fremont, Los Angeles City, Los Angeles County, Malibu, Milpitas, Pasadena, San Francisco, Santa Monica, and West Hollywood.

  •  Arbitration: Federal and state courts have been busy issuing numerous decisions affecting the enforceability of arbitration agreements for employees. Earlier this year, the federal Ninth Circuit Court of Appeal held that California’s ban on mandatory arbitration agreements was preempted by federal law. In the state court system, several Courts of Appeal have weighed in on the extent to which employers can limit employees from pursuing representative claims under California’s Private Attorney Generals Act. This fall, the California Supreme Court is expected to issue an important decision to give employers some clarity on the scope of enforceable arbitration agreements.

•  Senate Bill 553 (Occupational safety: workplace violence: restraining orders and workplace violence prevention plan): If approved, this legislation would establish new workplace violence prevention standards in California. Specifically, it would require most employers to establish, implement, and maintain a workplace violence prevention plan. It would also require covered employers to record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation. These requirements would be separate from and in addition to employer requirements under the current Cal/OSHA Injury and Illness Prevention Program (IIPP).

  •  Revival of the Industrial Welfare Commission: The current State budget bill contains a provision that would potentially revive the California Industrial Welfare Commission (IWC). The IWC was created over 100 years ago to regulate the wages, hours, and conditions of employment in California. It was disbanded in 2004 as part of the 2004-2005 budget agreement. If revived, the oversight of the IWC would impact nearly every employer in California. The commission would have the power to convene industry-specific wage boards to regulate the wages, hours, and working conditions in various industries through new orders, and the authority to issue subpoenas and conduct discovery.

  •  Senate Bill 403 (Discrimination on the Basis of Caste): If passed, this bill would amend the Fair Employment and Housing Act to include “caste” status as a characteristic that is protected from discrimination and harassment. The bill defines “caste” as an individual’s perceived position in a system of social stratification on the basis of inherited status.

Because the laws affecting employers in California are ever-changing, employers and human resource professionals should monitor these developments and consult their employment counsel to ensure they remain up to date on their legal obligations.

by Marco A. Lucido