Employers should take action to ensure compliance with new employment laws that take effect January 1, 2015.
In September 2014, California Governor Jerry Brown signed more than 300 new laws, many of which may require adoption of or changes to employer policies and/or practices. We apprised our clients of these laws in our two-part webinars and are sending this reminder that a number of these laws go into effect on January 1, 2015. California employers should take prompt action to ensure compliance by reviewing and updating handbooks, postings, policies, trainings, and procedures. The following checklist outlines some of the actions that California employers may consider taking for the coming new year.
Mandatory Sick Leave Posting and Notice Requirements
Effective July 1, 2015, the Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) requires that, with limited exception, employers with employees who work in California must provide paid sick time to current and new employees. Employers should be aware that although accrual of paid sick leave goes into effect on July 1, 2015, notice and posting requirements go into effect on January 1, 2015.
- Employers should display the sick leave poster in a place where employees can readily read it. Here is a link to download the poster from the Division of Labor Standards Enforcement’s (DLSE’s) website: Paid Sick Days Poster Template.
- Since 2013, employers in California have been required to provide new nonexempt employees with Wage Theft Prevention Act forms. This form has been revised for 2015 to include information regarding paid sick leave. The revised Notice to Employee form (or equivalent form drafted by an employer) must be used for nonexempt employees hired after January 1, 2015. Here is a link to download the form from the DLSE’s website: Notice To Employee - Labor Code 2810.5.
- For nonexempt employees hired before January 1, 2015, the employer is required to provide information regarding paid sick leave using any of the alternative methods specified in Labor Code section 2810.5(b).
- Employers should also review their current vacation, paid time off, and sick leave policies and make necessary updates in anticipation of the new paid sick leave law that goes into effect on July 1, 2015. Note, although the notice requirements of Labor Code section 2810.5 do not apply to exempt employees, employers will need to convey their sick leave policies to all employees through links to updated policies or an email message.
Review and Update Handbooks, Policies, and Harassment Trainings
- Update antiharassment training to include training on the prevention of “abusive conduct.”
- Update employee handbooks, discrimination and harassment policies, and sexual harassment training materials to make clear that protections apply to unpaid interns and volunteers. Ensure that unpaid interns and volunteers are provided notice of mechanisms and procedures for reporting concerns regarding alleged inappropriate conduct.
- California employers with union-represented employees should review and update electronic-use policies to ensure that any restrictions on email systems for nonwork purposes can be justified and can be demonstrably connected to special circumstances in light of the National Labor Relations Board’s (NLRB’s) recent decision in Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). In Purple Communications, the NLRB adopted “a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.” Employers should also notify employees that their use of workplace email could be monitored, consistent with the guidance articulated in Purple Communications.
- Revise break policies to clarify that recovery periods, like rest breaks, are treated as hours worked, and employees must be compensated for this time. Ensure that time records include time spent during both recovery periods and rest breaks as hours worked and that employees are properly paid for this time. Review production-based pay plans for nonexempt employees to make sure that the pay plan complies with the requirement to pay meal and rest breaks.
- Farm labor contractors should update their sexual harassment training to include two hours of training for supervisory employees of farm labor contractors each calendar year and to include training for nonsupervisory employees at the time of hire and once every two years thereafter.
- Revise protected leave policies for emergency rescue personnel to be consistent with AB 2536, which expands the definition of “emergency rescue personnel” to cover officers, employees, or members of a state-sponsored disaster medical response team.
Review New Laws with Human Resources and Supervisory Personnel to Ensure Compliance
- Employers should advise human resources and supervisory personnel that unpaid interns and volunteers are protected from discrimination and harassment under the Fair Employment and Housing Act.
- Advise human resources and supervisory personnel that the scope of unfair immigration-related practices has been expanded to include threatening to file or filing a false report or complaint with any state or federal agency.
- Advise human resources and supervisory personnel that they cannot discriminate against or discharge employees who have taken time off to perform emergency duties as part of a state-sponsored disaster medical response team. Employers that employ 50 or more employees must provide up to 14 aggregated days of leave per calendar year for emergency rescue training.
- Upon receiving a citation from the California Division of Occupational Safety and Health, employers should act quickly to identify and implement abatement procedures that comply with AB 1634.
- Train managers on the new sick leave requirements, including the broad definition of family members and prohibitions against denying the right to take accrued sick leave.
Check Applicable Laws When Hiring and Contracting
- In light of new laws that protect holders of undocumented resident driver’s licenses from discrimination, employers should exercise caution in requiring an employee to provide a valid driver’s license. Employers should not request an employee to present a driver’s license unless possession of a driver’s license is a lawful requirement of employment. This law does not change federal I-9 requirements.
- Employers should also exercise caution in responding to an employee who presents a driver’s license issued under Vehicle Code section 12801.9 (undocumented residents). Employers that learn that an employee possesses such a driver’s license may not discriminate against the employee for possessing the license, must keep that information confidential, and may use the license only to establish identity and authorization to drive.
- There are a number of new precautions for employers to consider when using staffing agencies or other labor contractors because, effective January 1, 2015, Labor Code section 2810.3 imposes liability on contracting employers for certain violations suffered by such workers.
- Confirm that labor contractors have adequate insurance and/or resources.
- Review and strengthen indemnification provisions in agency contracts.
- Ensure that no employees, including contingent workers, work off the clock.
- Make sure that labor contractors are properly calculating regular and overtime rates of pay.
- Regularly audit workers’ compensation policies held by labor contractors.
- Include contingent workers in safety trainings, policies, practices, etc.
- Implement a procedure for rapid access to time and wage records upon request.
- Work with well-established contractors with proven track records of legal compliance and financial liquidity to cover potential claims that may arise.
- Ensure that workers who provide services or construction work on public works projects are paid the appropriate prevailing wage.
- Inform contractors any time a project receives a public subsidy, is publicly funded, or is otherwise classified as a public works project, thereby triggering the requirement that the contractor pay prevailing wages to workers. Effective January 1, 2015, contractors are authorized by new Labor Code section 1784 to bring an action to recover any increased costs from the party it directly contracts with (e.g., the difference between the wages actually paid to an employee and the prevailing wage for the project) as a result of any decision to classify the project as a public work.
- Ensure that workers on federal construction and service contracts are paid at least $10.10 per hour, the new minimum wage for federal contracts.
The minimum hourly rate for the computer professional exemption will increase from $40.38 to $41.27, the minimum monthly salary will increase from $7,010.88 to $7,165.12, and the minimum annual salary will increase from $84,130.53 to $85,981.40. Employers should monitor local minimum wage ordinances. For example, the minimum wage in San Francisco will increase to $11.05 per hour on January 1, 2015. San Francisco will gradually raise the minimum wage to $15 per hour over the course of three years. San Francisco’s minimum wage will increase to $12.25 per hour in May 2015 and to $13 per hour in July 2016. From there, the wage will go up by one dollar every year until July 2018, when it lands at $15 per hour. Similarly, employers should note that the California minimum wage will increase to $10 per hour effective January 1, 2016.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: