News & Events

New Employment Laws- Here Comes 2022!

by Fenton & Keller

October 15, 2021

Question:  As a Human Resources professional, every year I brace myself for new employment laws that affect my business.  What are some of the new laws we need to know about for 2022?

Answer:   On the new employment laws front, the 2021 Legislative session was relatively quiet compared to 2019 and 2020.  As always, the Governor signed new employment laws, including the following, which take effect on January 1, 2022, unless otherwise noted:

• California Family Rights Act (CFRA)- In January 2021, CFRA was expanded to apply to employers with 5 or more employees.  New Assembly Bill (AB) 1033 clarifies that employees can take CFRA leave to care for a parent-in-law.  AB 1033 also revises the small employer (five to 19 employees) mediation program, making participation in this program a prerequisite to the employee filing a civil action. This should benefit small businesses by allowing them to address CFRA disputes through mediation rather than costly civil litigation.
• Expansion of Cal-OSHA Enforcement- Senate Bill (SB) 606 expands the enforcement authority of the California Division of Occupational Safety and Health (Cal-OSHA) by creating two new violations categories for which Cal-OSHA can issue citations — “enterprise-wide” and “egregious” violations. SB 606 creates a rebuttable presumption that employers with multiple worksites have made “enterprise-wide” workplace safety violations if either of the following are true:
  1. The employer has a written policy or procedure that violates any of the following:
     • Health and Safety Code section 25910 (governing the use of asbestos),
     • Any standard, rule, order, or regulation established by the Occupational Safety and Health Standards Board, or
     • Any standard, rule, order, or regulation established pursuant to the California Occupational Safety and Health Act of 1973.
  2. Cal-OSHA has evidence of a pattern or practice of the same violations involving more than one of the employer’s worksites.

An “egregious violation” applies to employers based on several factors including an extensive history of violations or a high injury and illness rate among workers. The law sets the maximum penalty for an enterprise-wide violation or a willful or repeated violation of occupational safety or health standards at $123,709.00 per violation.

• COVID-19- AB 654 is a clean-up bill that clarified last year’s COVID-19 workplace exposure notification and reporting requirements. AB 654 was an urgency measure that took effect immediately upon signing on October 5, 2021. When an employer receives notice of a potential COVID-19 exposure in the workplace, the employer must, within one business day, provide certain employees with written notice of (1) the potential exposure, (2) information on COVID-19-related benefits, and (3) information on the disinfection and safety plans that the employer plans to implement. Among other changes, AB 654 clarifies that the employer’s obligation is to provide information on COVID-19-related benefits and the disinfection and safety information by sending notice to employees who were “on the premises at the same worksite as the qualifying individual within the infectious period.” This bill also revises the time frame in which employers must give notice of COVID-19 outbreaks to local public health agencies from 48 hours to “within 48 hours or one business day, whichever is later.”

• On the Horizon: Employers should continue to monitor COVID-19 regulatory developments. In compliance with President Biden’s order, the federal Occupational Safety and Health Administration will be issuing regulations mandating vaccines. It is expected that the Cal-OSHA COVID-19 Emergency Temporary Standard will then be revised by December 2021 to adopt an equivalent or more stringent standard applicable in California.

Read More

Vaccination Considerations for Job Applicants

by Fenton & Keller

October 1, 2021

Q: I am accepting applications for open job positions.  Can I require new employees to be vaccinated against COVID-19 before reporting to work?

A: Generally, yes. In California, an employer can mandate that all employees, including applicants, be vaccinated against COVID-19, as long as the employer allows for vaccine exemptions for employees and applicants whose disabilities or sincerely held religious beliefs preclude them from receiving the COVID-19 vaccine.  An employer who wants to require vaccination for new hires should consistently impose the same requirements on current employees.  It is important for employers to assess the risk of unvaccinated workers in the particular workplace when making decisions about COVID-19 vaccine mandates.  Some employers mandate vaccines in situations where unvaccinated employees pose a significant risk of harm to others in the workplace, especially when they interact with individuals with high risk of contracting COVID-19.

If your company has mandated vaccines for all employees, make sure this requirement is made clear to potential candidates from the beginning of the recruiting process.  For example, employers with vaccine mandates should list on the job posting that full vaccination is a condition of employment.  Such employers should also make it clear in the job advertisement that the company is an Equal Opportunity Employer and reasonable accommodations for disabilities and sincerely held religious beliefs will be considered.

Employers should exercise caution in asking applicants about their vaccination status.  Although such an inquiry is not unlawful, employers cannot ask applicants questions that are likely to reveal the existence of a disability before making a conditional job offer.  For this reason, an employer should not ask an applicant if the applicant will be applying for an exemption from the vaccine due to a disability or sincerely held religious belief, and exemption forms should not be given to applicants until after the applicant is interviewed and provided a job offer.  The offer can be conditioned on the new employee’s compliance with the company’s vaccination policy on or before the first day of work.

The rules surrounding vaccination requirements for new hires can be confusing and often lead to more questions.  Additional tips include the following:

• Ensure that potential candidates are aware that the company will consider medical and religious exemptions to the vaccination requirement, consistent with federal and state law.
• Define the time frame in which the new hire must be fully vaccinated.  For example, require full or partial vaccination prior to the first day of work.  Identifying the consequences for new hires that fail to meet this requirement is also prudent.
• Make sure you have a clear process in place for providing information to applicants, once a conditional job offer has been made, on how to request an accommodation due to medical conditions or sincerely held religious beliefs that prevent vaccination.
• Do not collect proof of vaccination status until after an employment offer is extended and accepted.  Ensure that the confidentiality of such information is maintained when received.
• Consider providing your hiring team with a simple script to make it clear how to appropriately ask and respond to questions regarding your vaccination policy.

Being conscious of issues involving COVID-19 vaccination policies can assist employers in developing and implementing their policies, and in applying them to applicants during the pandemic.

Read More

Time to Audit and Update your Wage and Hour Practices

by Fenton & Keller

September 17, 2021

Question:

            I am new on the job as a Human Resources generalist.  What do you recommend as a starting point to make sure my new company is complying with California law?

Answer:

            It is a good practice to periodically review your wage and hour policies and practices to make sure they comply with existing laws.  Below is a partial list of steps to begin a wage and hour practices audit to ensure compliance:

• Be certain you are operating under the correct Industrial Welfare Commission Wage Order. The Wage Orders, Labor Code, and other California statutes set forth the rules employers must follow based on your business’s industry. View the Wage Orders here:  https://www.dir.ca.gov/iwc/wageorderindustries.htm
• Check and update your workplace postings.  A new law, SB 657, taking effect January 1, 2022, allows employers to distribute some, but not all, workplace postings by mail or electronically.
• Review the exempt and non-exempt classification of employees to make sure employees are properly classified.
• Evaluate the status of employees and independent contractors to ensure your company’s workers are properly classified.
• Check payroll dates and pay stubs to be sure they comply with California law.  In most industries, employees must be paid at least twice a month on regular paydays. In California, pay stubs must contain the following: gross wages earned; total hours worked (not required for salaried exempt employees); the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis; all deductions; net wages earned; the inclusive dates of the period for which the employee is paid; the name of the employee and the last four digits of the employee’s social security number or an employee identification number other than a social security number; the full and correct name and address of the legal entity that is the employer; all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee; and the number of Healthy Workplace Healthy Family Act sick leave available to the employee. A sample paystub for a nonexempt employee can be viewed here: www.dir.ca.gov/dlse/Paystub.pdf.
• Review the process for reimbursing employees for business expenses, making sure reimbursement payments are timely and supported by appropriate documentation.
• If you have employees who work on commission, ensure that written commission agreements are in place.
• Review the company’s meal and rest period policies. Remind managers and supervisors of the company’s policies regarding meal and rest breaks, not working off the clock, and accurately recording all time worked on a paper or electronic timesheet.
• Provide additional wage and hour training for managers and supervisors that set employee schedules or that work in payroll or human resources.
• Review your timekeeping system to see that it contains an opportunity for employees to review and sign an acknowledgement stating that the time record accurately reflects all hours worked, that they had the opportunity to take all meal and rest periods in the pay period, and if they did not, that they reported the situation to their supervisor for correction.
• Consider periodic wage and hour training to employees so they understand the importance to taking their meal and rest periods and accurately recording all time worked.

An ounce of prevention can go a long way in minimizing the risk of claims and ensuring proper payment for employees.

Read More

CalSavers: Registration Now Required For All Employers With More Than 50 Employees

by Fenton & Keller

September 3, 2021

Question: Is my employer required to offer a retirement plan?

Answer: As of June 30, 2021, eligible California employers who do not already offer their employees an employer-sponsored retirement plan, and who have more than 50 employees, are required to either sponsor a retirement plan or participate in the CalSavers Retirement Savings Program (“CalSavers”).

CalSavers is a state-run retirement plan for private sector workers whose employers do not offer traditional retirement plan programs. CalSavers provides automatic enrollment and contributions made through payroll deductions. Once an employee is enrolled, the money saved belongs solely to the employee, and the account can move freely with the employee from one job to the next.

CalSavers is mandated for all private employers in California, both for-profit and non-profit entities, that do not already sponsor a retirement plan for their business and that have 5 or more California based full- or part-time employees over the age of 18 (“Eligible Employers”). Employers who maintain or contribute to a Tax-Qualified Retirement Plan which qualifies for favorable federal income tax treatment, regardless of whether all employees are eligible for the Plan, or employers who have fewer than 5 employees are prohibited from participating in the Program.

The law requires Eligible Employers to register online, or certify their exemption from CalSavers by stating that their business already maintains a retirement plan, prior to the applicable effective date. The CalSavers rollout includes staggered deadlines for registration based on employer size:

All Eligible Employers with 50 or more employees should now be registered for CalSavers or should register as soon as possible. Additionally, employers with at least 5 employees who do not already offer a workplace retirement plan can register for CalSavers today and must do so before June 30, 2022. Employers may register at the following link: https://employer.calsavers.com/. There is no employer fee for participating in the program.

Existing employees of employers that participate in CalSavers must be enrolled within 30 days after the employer registers with CalSavers.  Employees hired after the employer registers will be automatically enrolled within 30 days of their date of hire or date of eligibility. Despite this automatic enrollment, participation in CalSavers is voluntary for employees, who may choose to opt out at any time. Once the employer is enrolled, on each payroll date it must deduct and transfer each participating employee’s contribution to the CalSavers administrator. All employee contributions must be remitted as soon as administratively possible, not to exceed seven business days from the date of deduction.

CalSavers is not sponsored by the employer, meaning the employer is neither responsible nor liable for an employee’s decision to participate in the program or for the performance of investments. An employer’s responsibilities under CalSavers are limited to registering for CalSavers, providing employee information to the CalSavers administrator, and remitting employee contributions through payroll deductions. An employer’s failure to allow eligible employees to participate in CalSavers can subject it to a fine of up to $500 per eligible employee.

When providing information about CalSavers to employees, employers are required to remain neutral about their employees’ participation in the program.  The CalSavers regulations expressly preclude employers from requiring, endorsing, encouraging, prohibiting, restricting, or discouraging employee participation in CalSavers, or from providing any advice or direction regarding any employee decision about CalSavers (e.g., investment choices, contribution rate, etc.).

More information can be found at https://www.calsavers.com

Read More