Monthly Archives

August 2016

EEO-1 Survey for 2016 Now Open!

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The Equal Employment Opportunity Commission (EEOC) has completed its mailing of the 2016 EEO-1 Survey notification letters.

The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more to file the EEO-1 report. The filing of the EEO-1 report is not voluntary and is required by federal law, Section 709(c), Title VII of the Civil Rights Act of 1964.

The annual filing deadline is Sept. 30

The EEO-1 report provides valuable employment data by race/ethnicity, gender and job categories, and is used by researchers, private attorneys, human resource staff, etc. in developing affirmative action plans, and in the Commission’s enforcement of Title VII of the Civil Rights Act.

Employers who meet the criteria listed above, or employers that filed the EEO-1 report in 2015 and have not received the 2016 EEO-1 notification letter by Aug.15, 2016, should immediately contact the EEO-1 Joint Reporting Committee at 1-877-392-4647 (toll-free) or e-mail [email protected]

There are new enhancements for uploading EEO-1 data files. “Companies will now be able to test and upload their data files without needing to email data files or wait for confirmation. This new method of submitting data files will save time and provide companies with immediate notification of any errors requiring corrections. This should go a long way toward helping employers to meet the Sept. 30 deadline.

Additional information on EEO-1 Data Load Enhancements may be found at: https://www.eeoc.gov/employers/eeo1survey/eeo1-data-upload-enhancements.cfm.

EEOC’s EEO-1 survey website for EEO-1 contains reference documents such as a sample form, instructions, FAQ’s, a fact sheet and EEO-1 Job Classification Guide.

HR Ideas will be providing a free webinar on August 10, 2016 @ 3:00 pm to approximately 4:00 pm to give you updates on filing and answer some or your questions. Please go to our website @ www.hrideas.com to sign up. Or, you may contact your HR Ideas representative at 925-556-4404 if you should have any questions.

Cal OSHA Vigorously Enforcing OSHA Heat Stress Standards

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Cal OSHA continues to investigate the tragic death of a farm worker recently reported in the Bakersfield area. The tentative cause of death is related to Heat Stress.

In light of recent high temperatures, Cal OSHA’s maximum enforcement of its Heat Illness Prevention Standard included 597 inspections of agriculture, construction, landscaping and other outdoor worksites this June and July.

So far this year, Cal OSHA have issued 994 citations to 742 employers for heat-related violations which require corrective action to protect workers from heat illness. In fact, Cal OSHA has the authority to close a job site down if they feel that the employer is not in compliance with the Heat Stress standards which not only include providing water and shade, but also providing employees with the required training.

Unfortunately, these statistics represent that there are still a lot of employers out there not doing enough to protect their employees.

Should you need any assistance or have any questions, please contact your HR Ideas representative at 925-556-4404.

California Assembly Bill 2535 Further Limits the California Pay Stub Requirement for Reporting Total Hours Worked

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On July 22, 2016, the Governor approved California Assembly Bill 2535 (“AB 2535”), which relates to itemized wage statements (more commonly known as pay stubs). Specifically, AB 2535 revises California Labor Code Section 226. The prior version of Labor Code Section 226 required employers to include on a pay stub total hours worked by the employee unless the employee was paid a salary and exempt from overtime. AB 2535 expands on Labor Code Section 226 and alters reporting requirements by asserting that employers do not need to report total hours worked on a pay stub for employees who are “exempt from the payment of minimum wage and overtime” under specified statutes or any applicable order of the Industrial Welfare Commission.

In sum, AB 2535 adds an additional subsection to Labor Code Section 226, which reads in pertinent part as follows:

“(j) An itemized wage statement furnished by an employer pursuant to subdivision (a) shall not be required to show total hours worked by the employee if any of the following apply:

(1) The employee’s compensation is solely based on salary and the employee is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission.

(2) The employee is exempt from the payment of minimum wage and overtime under any of the following:

(A) The exemption for persons employed in an executive, administrative, or professional capacity provided in any applicable order of the Industrial Welfare Commission.

(B) The exemption for outside salespersons provided in any applicable order of the Industrial Welfare Commission.

(C) The overtime exemption for computer software professionals paid on a salaried basis provided in Section 515.5.

(D) The exemption for individuals who are the parent, spouse, child, or legally adopted child of the employer provided in any applicable order of the Industrial Welfare Commission.

(E) The exemption for participants, director, and staff of a live-in alternative to incarceration rehabilitation program with special focus on substance abusers provided in Section 8002 of the Penal Code.

(F) The exemption for any crew member employed on a commercial passenger fishing boat licensed pursuant to Article 5 (commencing with Section 7920) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code provided in any applicable order of the Industrial Welfare Commission.

(G) The exemption for any individual participating in a national service program provided in any applicable order of the Industrial Welfare Commission.”

4 more rules the NLRB says to cut from your handbooks now

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The National Labor Relations Board (NLRB) has struck again in the name of protecting employees’ speech rights.

The result for employers: more communication policies are being tagged “illegal.”
On top of that, the NLRB’s rulings are binding for non-unionized employers as well as unionized shops. So everyone’s got to pay attention and heed its warnings.

What’s on the chopping block now?

The most recent policies to go through the NLRB’s shredder belonged to Casino Pauma, an Indian casino in Pauma Valley, CA.

After receiving a charge that the casino’s employee handbook contained overly broad rules, an NLRB administrative law judge struck down four of the casino’s policies.

They are:

A rule against conducting personal business on casino property. Specifically, the part of the rule the NLRB had a problem with was the part that banned employees from being on casino property when they weren’t working. The judge said the rule “unlawfully restricts off-duty employees from engaging in protected activity [i.e., talking about working conditions]; and it prohibits protected activity during nonworking time.”
A rule against solicitation and distribution. The rule banned all solicitation and distributions if the intended recipient expresses any discomfort or unreceptiveness. The judge said the rule was unlawful because it prohibited protected solicitation and distribution — i.e., talking about or distributing union materials.

A rule requiring an online disclaimer. It required employees to use a company disclaimer if they posted content to any blog, website or social media site about work. The judge said the rule essentially hindered employees’ ability to participate in protected activity/speech. (Note: This was perhaps the least surprising of the smackdowns, since the NLRB had previously ruled against requiring employees to use similar disclaimers.)

A rule to stop conflicts of interest. The rule required employees to receive the general manager’s written approval prior to soliciting employees, guests, suppliers or members from purchasing goods or services of any kind or to make contributions to any organizations, or to ask for support for any causes.

The judge said the rule was unlawful because it required advance approval before employees could participate in protected solicitation.

The punishment:

Thankfully for employers like Casino Pauma, the NLRB doesn’t have the power to issue fines for these types of violations of the NLRA.

The most common consequences for employers with policies deemed illegal:

rescinding such policies and rewriting them
posting notices of the changes in a public location
rescinding any disciplinary action against employees for violating those policies (including rehiring any terminated employees with back pay), and
clearing the names of offending employees.

In Casino Pauma’s case, the NLRB required it to rescind the unlawful language in its policies and handbook and republish the handbook without it. The judge said the casino could satisfy this requirement by supplying employees with handbook inserts explaining the corrective measures.

Suitable Seating Law in California – 4 Q&A’s

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What Is the Suitable Seating Law?

California employment law requires that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Recently there have been a number of lawsuits where employees sued their employer for not providing suitable seating. This law is not yet settled regarding 1) what is considered a suitable seat and 2) who needs one.

What Is Considered a Suitable Seat?

Suitability depends on circumstances of the work: chairs, stools, and benches may be required. The number of seats also depends on the work, as one seat per employee may not be necessary if employees rotate between standing and sitting.

Additionally, if employees are required to stand because of the nature of their work, employers are required to provide suitable seating in proximity to the work area. Employees must be allowed to use such seating as long as it doesn’t interfere with their work.

Who Needs a Suitable Seat?

Employers are required to provide seating when the “nature of the work reasonably permits the use of seats.” While it is clear that people who work at a desk will need a seat, other jobs such as mechanics or retail clerks may or may not permit the use of seats. In particular, cashiers have filed lawsuits arguing that they should be provided with seating. However, at least one court found that the employer was not liable because cashiers needed to project a “ready-to-assist attitude to customers waiting in line.”

Additionally, employers need not wait for employees to request a seat in order to assess the situation. The Ninth Circuit Court of Appeals determined that an employee could pursue a lawsuit even without having asked for a seat.

What Happens If You Don’t Comply with Suitable Seating Requirements?

Employers in California may be sued for not providing suitable seating under two different laws:

The Private Attorney General Act: The California Private Attorney General Act (PAGA) provides for an employee’s private lawsuit resulting from violations of suitable seating wage orders. Under PAGA, courts assess penalties on a per violation basis. Specifically, the penalty for initial violation is $100 per day for each worker. Penalties for all subsequent violations are increased to $200 on the same per day / per worker basis.
Class Action Lawsuits: Employees frequently bring their claims as part of class actions, and several $100 or $200 fees may be aggregated to become quite substantial.

Further, employers should note that unfairly disciplining or terminating a worker who requests suitable seating may violate other state and federal laws such as the Americans with Disabilities Act, which may lead to further penalties.

Should you have any questions, please contact your HR Ideas representative at 925-556-4404.

FAQs on the Final Overtime Regulations

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On May 18, the U.S. Department of Labor’s (DOL) Wage and Hour Division released the new final overtime rule. The new minimum salary level for the executive, administrative, and professional employee exemptions under the Fair Labor Standards Act (FLSA) will be $913 per week, or $47,476 per year, under final regulations. This new salary threshold—which will become effective on December 1, 2016—more than doubles the current minimum salary level of $455 per week, or $23,660 per year and will have a dramatic impact on employers. Below are answers to some frequently asked questions about the new rule.

Q. Why is the Department of Labor revising its overtime regulations for white collar workers now?

On March 13, 2014, President Obama signed a presidential memorandum directing the Department to update and modernize the Part 541 regulations. The DOL has long stated that the current salary levels, last set in 2004, were outdated and no longer useful in helping to separate lower-salaried white collar employees who should get overtime pay for working extra hours from those who should be exempt. The DOL estimates that, in Fiscal Year 2017, over 4.2 million currently exempt workers will become nonexempt if their salaries are not raised.

Q: Which exemptions are affected?

The final rule increases the minimum salary level for these exemptions: executive, administrative, professional, and computer professional. In addition, the final rule increases the minimum annual compensation and the minimum weekly salary threshold for highly compensated employees.

Q. What are the significant changes to the overtime regulations for white collar salaried workers?

The new regulations increase the standard salary level from $455 per week ($23,660 for a full-year worker) to $913 per week ($47,476 for a full-year worker).

Employers will be able to use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level, provided these payments are made on a quarterly or more frequent basis.

The total compensation threshold for the highly compensated employee (HCE) exemption was raised from $100,000 to $134,004. The DOL did not make changes to how employers may use bonuses to meet the salary level component of the HCE test. To meet the exemption, employers must pay workers at least $913 per week on a salary basis, while the remainder of the total annual compensation may include commissions, nondiscretionary bonuses, and other nondiscretionary compensation.

Q. Did the Department of Labor change the duties tests for any of the exemptions?

No, the DOL did not make any changes to the duties tests.

Q. How do the final regulations affect the outside sales exemption?

The final regulations did not make any changes to the outside sales exemption. There is still no salary requirement for this exemption, and the job duties requirements have not changed.

Q. When will these changes take effect?

The effective date of the new regulations is December 1, 2016. Future automatic updates to these thresholds will occur every three years, beginning on January 1, 2020.

Q: What should employers do now?

The first step is to identify exempt employees and job positions that currently are paid less than $913 per week or $47,476 per year. For employees currently classified as exempt but whose compensation will not satisfy the new minimum salary threshold, employers should:

Plan for reclassifying these employees as nonexempt or raise their salaries to meet the new thresholds;
Determine how to compensate affected employees (e.g., determine what their regular hourly rate will be and whether any of these employees will be paid as salaried nonexempt employees);
Make necessary changes in payroll processing and information technology systems to convert these employees to nonexempt status;
develop communication plans, including identifying who will communicate the changes to affected employees; and
Monitor employee morale after making these changes.

Please contact your HR Ideas representative at 925-556-4404 should you have any questions.