Prepare NOW-2016
California and Federal
Legislative Update from a
Source You Trust
Welcome
Jon Decoteau
SHRM’s Divisional Director – West
State of California Field Service Leader
July 15, 2016
Welcome
THANK YOU FOR JOINING
US TODAY
California Fun F
•
LA, San Diego and San Jose are the 3
largest cities (population) in the state
•
San Francisco grew 180X between 1848 –
1855 from 200 to 30,000 residents. $2B in
gold mined during the same period (1858
$’s)
•
99.5 % of all dates grown in the US & 17
million gallons of wine produced in the state
•
Worlds first McDonalds, Barbie, Blue
Jeans, Frisbee, Theme Park, and Apple
Computer
California Is Serious Business
• First State to have a trillion dollar
economy. 8th largest economy in
the world
• 41% of all US companies receiving
VC $ were in CA (2012)
• CA ranks #1 in patents in the US
• 122,000 HR professionals in
California
SHRM is Here to Help
• 23,014 California SHRM Members
• 7,060 SHRM members in Bay Area
• 17 chapters across the state
• Extensive online resources for CA
as well as “in state” programming
• Staff located in San Diego and in
the Sacramento office
Agenda
What We’ll Be Covering Today:
 The Overtime Rule and Federal Action That
Impact California and the Tech Industry
 HR California Public Policy Outlook – including
Bay Area Impacts
 California HR Express Top 3; What You Don't
Know
Can Harm You!
 Introduction to CalSHRM and Closing
SHRM Competency Model
7
Today will be a perfect example of why
Competency Matters
shrm.org/hrcompetencies
April 2015 MEMBER BENEFITS WEBCAST ©SHRM 2015
Update on Overtime Rule &
Other Federal Actions that
Impact CA & the Tech Industry
Nancy Hammer
Senior Government Affairs Policy Counsel
Topics Covered
• Federal Overtime rule and what it means for
California employers
• Fair Pay & Safe Workplaces executive order
affecting federal contractors
• Compensation Data Collection
• Looking ahead
Overtime
Overtime
Fair Labor Standards Act of 1938
 Establishes minimum wage and overtime provisions
 Exemption for employees defined as
 Executive
 Administrative
 Professional
 Outside Sales
Overtime
29 C.F.R. Part 541 – “White Collar” Exemption
paid on a salary basis;
duties tests;
meet minimum salary threshold
 Amended many times
 Increased salary threshold
 Modifications of duties tests
 Last revised in 2004
Overtime
Key Elements of Final Federal Overtime Rule:
 Increased minimum salary level
 New treatment of bonus or commission payments
 Increased guaranteed salary for Highly Compensated
Employees (HCE)
 Automatic adjustments to salary level
 Effective December 1, 2016
Overtime
Current
Proposed
Final
$455 per week
$970 per week
$913 per week
$23,660 per year
$50,440 per year
$47,476 per year
 Methodology: 40th percentile of full time salaried
workers in the lowest wage census region—
currently the South.
Overtime
 What is included in salary--Final rule
 Up to 10% of minimum salary level may be
paid through nondiscretionary bonuses,
incentive pay, or commissions
 Must be paid quarterly
 One pay period after the quarter to make up
any shortfall
 California law implications
Overtime
 Highly Compensated Employees (HCE)-Final rule:
 Increase guaranteed salary to $134,004 per
year
 Methodology: 90th percentile of salaried
workers nationwide
 Not available in California
Overtime
 Automatic updates to
 Minimum salary threshold and
 Guaranteed salary for HCE
 Update every three years
 DOL will provide notice 150 days in
advance
Overtime
 Next increase January 1, 2020
 DOL estimates:
 Minimum salary threshold: $984 per week
($51,168 per year)
 HCE threshold: $147,524 per year
California & Overtime
 Federal law, overtime paid for all hours worked in excess of
40 hours/week (unless exempt)
 California law, overtime paid daily over 8 hours/day and
weekly over 40 hours/week
 Duties—
 No Federal change but…
 California percentage cap
 No concurrent duties
 Salary basis- Federal salary basis ($47,476) is higher than California’s salary basis
(currently $41,400 and $43,680 on Jan. 1, 2017
 In 2019, California’s salary basis will exceed the federal amount
($49,920 for those with 26 or more employees)
California & Overtime
 California
Effective
Date
Minimum
Wage
Weekly
Salary
Monthly
Salary
Annual
Salary
Jan. 1,
2017
Jan. 1,
2018
Jan. 1,
2019
Jan. 1,
2020
Jan. 1,
2021
Jan. 1,
2022
$10.50
$840
$3,640
$43,680
$11.00
$880
$3,813.33
$45,760
$12.00
$960
$4,160
$49,920
$13.00
$1,040
$4,506.67
$54,080
$14.00
$1,120
$4,853.33
$58,240
$15.00
$1,200
$5,200
$62,400
Source: What do the Overtime Regulations Mean for California Employers?
Ogletree Deakins, www.shrm.org
California & Overtime
 Options for Implementation
 Raising pay to retain exemption
 Reclassifying employees
 Restructuring
 Impacts on workplace flexibility
 California’s timekeeping requirements
 Must record shift start and end times
 Must record start and end times for meal
periods
California & Overtime
 Communicating change to employees
 Training supervisors
 Meal break
 Rest breaks
 Policy changes
 Device use
 DOL RFI potentially in July - Request for Information on
the Impact of the Use of Electric Devices by Nonexempt Employees on Hours
Worked Issues
 Restricting Overtime
Overtime Resources
FLSA Overtime Rule Resources
https://www.shrm.org/legalissues/federalresources/pages/overtime-rule-hub.aspx
What HR Professionals Need To Do:
Use these resources to help your company comply with the new
overtime regulations when they are released:
How to Tell Employees They're Losing Their Exempt Status
Overtime Overhaul: Preparing for the New Rule
FLSA: Memo to Exempt Employees Regarding the FLSA Changes
https://www.shrm.org/templatestools/samples/hrforms/pages/memo-to-exempt-employeesregarding-the-flsa-changes.aspx
www.dol.gov/overtime
DOL info line:
1-866-4US-WAGE
(1-866-487-9243)
Congressional Response to Overtime Rule
•
Protecting Workplace Advancement and
Opportunity Act (H.R. 4773 & S. 2707)
•
•
DOL economic analysis on small businesses,
nonprofits, and public employers
Prohibit automatic increases.
•
Democratic Alternative
•
Appropriations
Tiffany Bloyer, Rose Johnson, Eric
Oppenheim (above)
Representing local government, nonprofit & small business
Office of Management & Budget
Elizabeth Hays (right)
Representing non-profit
House Subcommittee on Workforce Protections
Fair Pay & Safe Workplaces Executive Order
Department of Labor
Executive Order on Fair Pay and Safe Workplaces
 Issued on July 31, 2014, the Executive Order requires prospective federal
contractors and their subcontractors (with contracts valued at more than
$500,000) to disclose to the government, labor violations of 14 different federal
and state labor laws and the equivalent state laws that occurred during the
previous 3-year period of time.
 Laws covered include the FLSA, OSHA, the NLRA, Davis Bacon, the Service
Contract Act, 503 of the Rehabilitation Act, USERRA, FMLA, Title VII of the Civil
Rights Act, the ADA, ADEA; among others.
 Contractors must disclose whether any of the following has been rendered
against them for:
 Administrative merits determinations
 Arbitral awards or decisions
 Civil judgments
Fair Pay & Safe Workplaces Executive Order
Main Provisions:
 Labor compliance advisors (under DOL - review contractor’s disclosures and make
recommendations to contracting officers at various agencies);
 Notification of employee classification;
 Prohibition on arbitration agreements;
 Applies to any contracts entered into on or after final regulations go into effect;
 Regulations were proposed in July, 2015 and SHRM submitted comments in
August;
 Regulations current at under review at Office of Information & Regulatory Affairs
(OIRA) since May 4, 2016.
Debbie Norris, VP of HR & SHRM A-Team
Merrick & Company
SBA Roundtable
July 22, 2015
Compensation Data Collection
Main Provisions:
 Proposed changes to EEO-1 form to collect pay data;
 100 or more employees beginning in 2017 (September 30 – EEO-1 filing deadline);
 Existing EEO-1 collects number of employees by sex, race, and ethnicity in 10 job
categories. Revised form adds 12 pay bands and hours worked to existing
reporting requirements;
 Increases grid from 180 fields to 3,660 fields.
Compensation Data Collection
Concerns:
 Summary compensation data not useful;
 Burden on employers;
 Recommend withdrawal. At most, pilot study;
 Base salary vs W-2;
 Use calendar year if continue to use W-2 data.
Status:
 Paperwork Reduction Act;
 Additional 30 day comment period during OMB review
Looking Ahead
 EEOC report announced at SHRM annual and June 20 hearing “Rebooting
Workplace Harassment Prevention”
 EEOC hearing May 18, 2016 on “Promoting Diverse & Inclusive Workplaces in the
Tech Sector”
 Presidential election
Agenda
ICE BREAKER AND BREAK
Prepare NOW-2016
California and Federal
Legislative Update from a
Source You Trust
California HR Public Policy
Outlook
Jason Gabhart
SHRM’s California State Government Relations Advisor
July 15, 2016
Agenda
What We’ll Be Covering
Today:
 California political landscape
 California HR legislation
 Bay Area employment laws
 National policy overview
 SHRM’s Advocacy Team
California Political Landscape
California’s Governor
– Jerry Brown defeated Neel Kashkari by a 59 to 41
point margin in November 2014
– Historic fourth term for Jerry Brown
– “The key for the next four years it to make the
government do what it’s supposed to. We are
going to go in a very progressive but fiscally
responsible direction.”
California Political Landscape
California’s Governor (cont.)
– 133 vetoes last year
– Around 60,000 words used in his veto messages
• “Already” appeared 164 times
• “Unnecessary” appears 100 times
• “New” appears 207 times
California Political Landscape
California State Senate
– With 14 Republicans in the Senate, Democrats failed
to regain a supermajority
California State Assembly
– Democrats lost supermajority in the Assembly.
55-24 advantage was cut to 52-28
California Political Landscape
California State Budget
– Democratic Majority Passed, and Governor Brown
Signed Budget in June
Total general fund budget is $122.5 billion
No line-item vetoes. First time since 1982 (Brown)
Ends cap on welfare benefits for families that have more children
More money for education and higher rates for child care providers
Directs and additional $3 billion into state’s rainy-day reserve,
increasing it to $6.7 billion by June 2017
• Amendments to the Private Attorneys General Act (PAGA) that give
the Labor & Workforce Development Agency: (1) more time to
investigate and issue citations for Labor Code violations; (2) more
oversight over PAGA actions; (3) an opportunity to object to
proposed PAGA settlements as insufficient; and (4) more funds to
investigate and issue citations for Labor Code violations
•
•
•
•
•
November 2016 Election
United States Senate Race
 Barbara Boxer not seeking re-election
 Democratic vs. Democrat
– Kamala Harris (CA Attorney General) 39% in latest poll
– Loretta Sanchez (U.S. Rep., Dist. 46-Garden Grove) 24% in latest poll
November 2016 Election
17 initiatives on the California ballot
•
•
•
•
•
•
•
•
Proposition 51: Authorizes $9 billion in general obligation bonds for school
construction and modernization.
Proposition 52: Requires two-thirds vote of Legislature to amend law that
requires hospitals to pay fees that are used for obtaining federal matching
funds for Medi-Cal.
Proposition 53: Requires voter approval before state may issue over $2
billion in bonds to finance a single project.
Proposition 54: Requires bills to be in print for 72 hours before being acted
upon.
Proposition 55: Extends Prop. 30 income tax on high earners for another 12
years.
Proposition 56: Increases tobacco tax by $2 per pack.
Proposition 57: Requires judges instead of prosecutors to determine
if criminal defendants under 18 years old should be tried in juvenile court.
Proposition 58: Amends 1998's Prop. 227 and allow public school students
who speak limited English to be taught in languages other than English.
November 2016 Election
•
•
•
•
•
•
•
•
•
Proposition 59: Seeks voter opinion on California elected officials using their
influence to overturn Citizens United decision.
Proposition 60: Requires adult film performers to use condoms.
Proposition 61: Prohibits state from paying more for prescription drugs than
prices paid by US Dept. of Veterans Affairs.
Proposition 62: Repeals death penalty and replace it with life without
possibility of parole.
Proposition 63: Prohibits possession of large-capacity ammunition
magazines; require background checks for ammunition purchases; require
lost or stolen guns to be reported to law enforcement.
Proposition 64: Legalizes marijuana use beyond medicinal purposes and
institute tax on marijuana sales.
Proposition 65: Redirects money collected by retail stores from selling carryout bags to fund administered by Wildlife Conservation Board.
Proposition 66: Would set time limits on state court death penalty reviews
and require appointed attorneys who take noncapital appeals to accept
death penalty appeals.
Proposition 67: Referendum: Overturns SB 270 (plastic bag ban).
2015 California HR Legislation
Amendments to the Family-School Partnership Act
and to Kin Care Leave (SB 579)
– Allows employees to take job-protected time off to
find, enroll or reenroll their children in a school or with
a licensed child care provider.
– Also allows employees to take time off to address a
“child care provider or school emergency.”
2015 California HR Legislation
Amendments to California’s Equal Pay Act (SB 358)
– Employers were previously prohibited from paying less
to members of the opposite sex who perform equal
work in the same establishment.
– Eliminates the “same establishment” requirement, and
revises the “equal work” requirement to instead
prohibit paying less for “substantially similar work,
when viewed as a composite of skill, effort and
responsibility” performed under similar working
conditions.
– Amended the current exceptions, which were: a
seniority system, a merit system, a system which
measures earnings by quantity or quality of
production, or a differential based on any bona fide
factor other than sex.
2015 California HR Legislation
Amendments to California’s Equal Pay Act (SB 358),
(cont.)
– Retains the first three exceptions, but significantly
revises the “bona fide factor other than sex” exception
to require the employer prove a wage-differential is not
based on or derived from a sex-based differential and is
consistent with a “business necessity,” such as a
difference in education, training or experience that is
job-related with the position in question.
– In addition to demonstrating at least one of those
factors, the employer must also satisfy two new criteria:
• That each factor relied upon is applied reasonably; and
• The one or more factors relied upon accounts for the
entire wage difference.
2015 California HR Legislation
 Amendments to California’s Equal Pay Act (SB
358), (cont.)
– Expands from two years to three years an
employer’s obligation to retain records of the
wages and wage rates, job classifications
and other terms and conditions of
employment for employees.
– Employees free to discuss their own wages,
the wages of others, or ask another
employee about their wages.
– Employers are not obligated to release wage
information about employees.
2015 California HR Legislation
E-Verify Misuse Targeted (AB 622)
– Prohibits employers, except as required by federal law
or as a condition of receiving federal funds, from using
E-Verify to check the employment authorization status
of an existing employee or an applicant who has not
been offered employment.
– However, it also specifies that it would not prohibit an
employer from using E-Verify in accordance with
federal law to check the employment authorization
status of a person who has been offered employment.
– Authorizes civil penalties up to $10,000 per violation.
2015 California HR Legislation
 Accommodation Requests to Constitute
Protected Legal Activity for Retaliation Purposes
(AB 987)
– Amends FEHA to prohibit an employer from
retaliating or discriminating against a person for
requesting accommodation for a disability or
religious beliefs, regardless of whether the
accommodation request was granted.
2016 California HR Legislation
SB 985 Individual Alternative Workweek Schedules
•
Permits individual non-exempt employees to obtain an “employeeselected flexible work schedule” providing for workdays up to ten hours
without daily overtime between eight to ten hours worked.
•
Retains the general daily overtime rule for employees who did not elect
such schedules, and would also retain daily and weekly overtime for work
performed beyond the hours contemplated in the schedule.
•
Requires the schedules be in writing and on a form developed by the
DLSE containing certain required items regarding the employee’s rights.
•
Requires schedules be signed by the employee and the employer, and
that the employer retain copies of these schedules either in the
employee’s personnel file or in a single file containing all such schedules,
and that the employer remit a copy of the signed schedule to the DLSE.
Failed in the Senate Labor & Industrial Relations Committee by a vote of 1-4
2016 California HR Legislation
SB 1166 Parental Leave Protections
•
Requires employers to provide up to 12 weeks of parental leave for an
employee (male or female) to bond with a new child within one year of
the child’s birth, adoption or foster care placement.
•
The California Family Rights Act (CFRA) already provides this
protection to employees working for employers with more than fifty
employees if they work 1250 hours in the preceding 12 months.
•
This bill would extend this benefit to nearly all employees (so long as
their employer has at least ten employees) who work 1250 hours in the
preceding 12 months.
Failed by a vote of 2-1 (4 abstentions) in the Assembly Committee on
Labor & Employment
2016 California HR Legislation
AB 1383 Voluntary Veterans’ Hiring Preference
•
Authorizes private employers to extend a preference during hiring
decisions to honorably discharged veterans. Employers would be
permitted to require a veteran to submit United States Department of
Defense Form 214 to confirm eligibility for this preference.
•
Specifies that the preference shall be deemed not to violate any state
or local equal employment opportunity law, including the FEHA.
•
Must be in writing.
Failed by a vote of 3-3 (1 abstention) in the Senate Judiciary Committee
2016 California HR Legislation
AB 2405 Paid Time Off for School Related
Activities
•
Requires employers to provide an employee at least 24 hours of paid
time off for planned absences for school related activities, unless
otherwise provided in a collective bargaining agreement entered into
before January 1, 2017.
•
Requires employers to display a poster, which the Labor
Commissioner would develop, advising employees of their right to
request and use 24 hours of paid time off for their child’s schoolrelated activities and identifying the employee’s remedies for any
discrimination or retaliation.
Held on the Assembly Floor
2016 California HR Legislation
SB 878 Predictive Scheduling
•
•
Requires grocery stores, restaurants and retail stores to provide
employees advance notice of their schedules, and would require
employers to provide “modification pay” for any changes made with
less than seven days’ notice.
Requires employers to provide employees at least seven days’ notice
of the first day on the work schedule, with the work schedule required
to identify all scheduled shifts for at least 21 consecutive days.
Held in the Senate Appropriations Committee
2016 California HR Legislation
AB 1595 and AB 1942 Human Trafficking
Regulations
•
•
•
•
AB 1595 would require employers that provide “mass transportation
services” to train its employees who are likely to interact or come into
contact with victims of human trafficking, about the signs of such
trafficking and how to contact the appropriate law enforcement
agency.
By January 1, 2018, this training obligation would be expanded to all
new and existing employees.
“Mass transportation services” would include buses, trains, and light
rail, but not include taxi services or air travel.
Similarly, AB 1942 is nearly identical to AB 1595 except it would
impose similar training obligations (and timeframes) upon hotels and
motels that provide lodging services in the state, rather than “mass
transportation services.”
Held in the Assembly Appropriations Committee
2016 California HR Legislation
AB 67 Double Pay on Thanksgiving
•
•
•
•
Requires certain large employers (with more than 500 employees) to
pay non-exempt employees twice their regular rate of pay for working
on Thanksgiving.
“Retail store establishments” would be defined as those having a
physical store within the state with more than 50 percent of its revenue
generated from merchandise subject to the state’s sales and use tax,
but specifically would not include stores located in a hotel, amusement
park or movie theater.”
“Grocery store establishment” would be defined as those having a
physical store within the state that sells primary household foodstuffs
for offsite consumption.
Only applies to non-exempt employees, and would not apply to
employees covered by a collective bargaining agreement that
expressly provides for the hours of wages, hours of work, and working
conditions of employees.
In Senate Appropriations Committee
2016 California HR Legislation
SB 1063 Equal Pay Regardless of Race or Ethnicity
•
Prohibits employers from paying an employee at wage rates less than
the rates paid to employees of another race or ethnicity for
substantially similar work when viewed as a composite of skill, effort
and responsibility and performed under similar working conditions.
•
As with gender, the employer would bear the burden to demonstrate
that the wage differential is based upon one or more of the following
factors: (a) a seniority system; (b) a merit system; (c) a system that
measures earnings by quantity or quality of production; or (d) a bona
fide factor other than race or ethnicity, such as education, training or
experience.
In Senate Appropriations Committee
2016 California HR Legislation
AB 1843 Prohibition on Inquiring About Juvenile
Court Actions
•
Current law prohibits employers from requesting applicants to disclose,
or from using as a factor in determining employment conditions,
information concerning an arrest or detention that did not result in a
conviction, or information concerning a referral to or participation in a
pre- or post-trial diversion program.
•
Since 2014 (SB 530), California employers have also generally been
prohibited from inquiring about or using information related to a
conviction that has been judicially dismissed or ordered sealed.
•
This bill would provide similar protection related to juvenile-related
arrests as it currently provides for adult criminal histories.
In Senate Appropriations Committee
2016 California HR Legislation
SB 1167 Heat Illness Prevention Regulations for
Indoor Employees
•
Since 2006, California’s Division of Occupational Safety and Health has
adopted and enforced regulations establishing a heat illness prevention
standard for outdoor workers.
•
This bill would require the division, by July 1, 2018, to propose for
adoption a heat illness and injury prevention standard applicable to
indoor workers.
•
Specifies that this requirement does not prohibit the division from
proposing, or the standards board from adopting, a standard that limits
the application of high heat provisions to certain industry sectors.
In Assembly Appropriations Committee
2016 California HR Legislation
AB 2337 Employment Protections: Victims of
Domestic Violence, Sexual Assault or Stalking
•
Expands employer notice requirements regarding domestic violence
employee protections.
•
Provides that an employer shall inform each employee of his or her
rights established under current law protecting employees affected by
domestic violence, by providing that information in writing to new
employees upon hire and to other employees upon request.
•
Requires the Labor Commissioner to develop a form that an employer
may use to satisfy this notice requirement.
In Senate Appropriations Committee
2016 California HR Legislation
AB 2261 Division of Labor Standards Enforcement
Duties
•
Current law authorizes the Division of Labor Standards Enforcement
(DLSE) to receive employee complaints for retaliation.
•
This bill will allow the DLSE to commence an investigation of an
employer that it suspects to have discharged or otherwise
discriminated against an individual in violation of any law under the
jurisdiction of the Labor Commissioner, with or without receiving a
complaint from an employee.
In Senate Judiciary Committee
2016 California HR Legislation
AB 2895 Injury Prevention Programs
•
Current law requires every employer to establish, implement, and
maintain an effective injury prevention program. This bill, commencing
July 1, 2017, requires an employer to keep a complete, updated copy of
the written injury prevention program at each worksite and to make it
available to any employee upon oral request.
•
Also requires an employer to inform each employee and each new hire
of the availability of, and of the employee’s rights with respect to
inspecting and receiving, a copy of the written injury prevention program.
•
Requires an employer who receives a written request for a copy of the
written injury prevention program from an employee to comply within 5
business days and to provide the copy at no cost. Also entitles an
employee to recover a penalty in a civil action for failure by an employer
to comply with the employee’s written demand.
In Senate Appropriations Committee
2016 California HR Legislation
SB 1241 Consumer and Employment Contracts:
Venue
•
Prohibits a consumer or employment contract on or after January 1,
2017 from requiring a consumer or employee, as a condition of
entering into a contract, to agree to a provision that would require the
consumer or employee to adjudicate outside of California a claim
arising in California or deprive the consumer of the protection of
California law with respect to a controversy arising in California.
•
Makes any choice of venue or choice of law provision voidable, upon
request of the consumer or employee, if the provision would violate
either of those prohibitions.
•
The bill’s provisions do not apply if an employee was represented by
legal counsel when the contracted was entered into.
On Senate Floor
2016 California HR Legislation
ABx2 7 Smoking in the workplace
•
Existing law prohibits smoking of tobacco products inside an enclosed
space at a place of employment. This bill would expand the prohibition
on smoking in a place of employment to include an owner-operated
business and would also eliminate most of the specified exemptions
that permit smoking in certain work environments, such as hotel
lobbies, bars and taverns, tobacco shops, banquet rooms, warehouse
facilities, and employee break rooms.
•
Signed by the Governor on May 4, 2016
SBx2 5 E-Cigarettes
•
Recasts and broadens the definition of "tobacco product" in current
law to include electronic cigarettes.
•
Signed by the Governor on May 4, 2016
2016 California HR Legislation
SB 3 Minimum Wage
•
Minimum wage will increase to $10.50 on January 1, 2017.
•
Will increase each year and reach $15.00 on January 1, 2022 for
employers with more than 25 employees, and on January 1, 2023 for
employers with 25 or fewer employees.
•
Requires that, after January 1, 2023, the minimum wage will be
increased annually from the seasonally adjusted the CPI, but no more
than 3.5% in a year, and rounded to the nearest $0.10. The increase
shall be calculated on August 1 to take effect on January 1 of the
following year.
•
Signed by the Governor on April 4, 2016
California Fair Employment & Housing Council’s
(FEHC) Criminal History Regulations
•
Prohibits employers from using criminal history information if doing so:
• Would have an adverse impact on individuals who are members of
a protected class (e.g., race, gender, national origin); and
• The employer can’t demonstrate that the criminal history is jobrelated and consistent with business necessity.
•
Before taking an adverse employment action, such as refusal to hire,
an employer would have to give the individual notice of the
disqualifying conviction and an opportunity to dispute the accuracy of
the information.
•
Even if the employer can show that a criminal history inquiry is jobrelated/consistent with business necessity, an individual can still bring
a discrimination claim if they can show that there is a less
discriminatory effective alternative means of achieving the business
necessity.
•
Comments due by July 22
Bay Area Labor & Employment Laws
Minimum Wage
San Francisco---------$13.00
Berkeley----12.53
($15.00 by 7/1/18)
Emeryville--$13.00 ($15.00 by
7/1/18)
Mountain View---------$11.00
Palo Alto-----------------$11.00
Oakland-----$12.55
El Cerrito----$11.60 ($15.00 by
San Jose----------------$10.30
1/1/19)
Santa Clara-------------$11.00
Richmond---$11.52 ($13.00 by
1/1/18)
Sunnyvale---------------$10.30
Bay Area Labor & Employment Laws
Paid Leave
> San Francisco
• First place in the nation to require businesses to provide fully
paid leave of six weeks for new parents.
• Takes effect in 2017, and San Francisco businesses will have
to share the parental leave cost with the state.
• The state already allows workers to receive 55 percent of their
pay for up to six weeks to bond with a new child. The money
comes out of a state insurance program funded by workers.
Now, employers with at least 20 employees to make up the
rest will make up the rest of that cost.
Bay Area Labor & Employment Laws
Paid Sick Leave
> San Francisco
• Accrue 1 hour for every 30 hours worked. Capped at 40 hours
if 10 or fewer employees, 72 hours if more than 10 employees
(State law caps at 48 hours).
> Oakland
• Accrue 1 hour for every 30 hours worked. Capped at 40 hours
if fewer than 10 employees, 72 hours if 10 or more employees.
> Emeryville
• Accrue 1 hour for every 30 hours worked. Capped at 48 hours
if 55 or fewer employees, 72 hours if more than 55 employees.
Race for Control of the United State Senate in 2016
– Larry Sabato, University of VA
State Party Control Has a Huge Impact on What HR
Issues Will Become Law in 2016
State Party Control Has a Huge Impact on What HR
Issues Will Become Law in 2016
Republican
Democrat
• Right-to-Work
• Paid Sick/Safe Leave
• Employee Drug
• Expansion of FMLA
Testing/Workers Comp
• Misclassification of
• Unemployment
Workers/Wage Theft
Insurance Reform
• Discrimination in the
• Mandated Use of
Workplace/ENDA/
E-Verify in Hiring
Pregnancy/Interns
• Workplace Weapons
• Workplace
(parking lot)
Bullying/Harassment
• Restrictions on
• Minimum Wage/ FLSA
Counties/Cities
• Equal Pay
Approving
Ordinances on
HR Issues
Both
• Use of Credit Checks in Hiring/Promotions
• Ban-the-Box/Criminal Background Checks
• Medical Marijuana/Cannabis in the Workplace
• Voluntary Preference in Veterans
Hiring/Promotion
• Restricting Employer Access to Social Media
Passwords
SHRM’s Advocacy Team
SHRM’s Advocacy Team
Federal Public Policy
State
Public Policy
Regulatory /
Judicial Affairs
SHRM’s Advocacy Team
What is the SHRM
Advocacy Team?
The SHRM A-Team, made up of thousands
of HR professionals, is a critical part of
SHRM’s enhanced member advocacy
initiative, working to advance the interests
of the HR profession and communicate the
HR perspective on workplace issues in
Washington and state legislatures across
the country.
Two main levels of
involvement:
❶ HR Advocate
❷ Advocacy
Captain
Questions?
Speaker Contact Information
Jason Gabhart
[email protected]
916-403-3465
PREPARE NOW - 2016 CA AND
FEDERAL LEGISLATIVE UPDATE
FROM A SOURCE YOU TRUST
Doing HR In California – What
You Do Not Know WILL Hurt You
Mike Letizia, SHRM-SCP
President, Letizia HR Solutions, Inc.
SHRM Pacific West Membership Advisory Council Rep
Your Facilitator
74
Disclaimers!
• We will go fast!
• We won’t cover
everything in
detail!
• This training does
not substitute for
the advice of legal
counsel!
75
WAGE & HOUR
76
Wage and hour
• AB 10, CA Minimum Wage Increased to
$10.00 per Hour 1/1/2016
• SB 3, Increase to $15/Hour by 2023
• Municipality Exceptions to CA Minimum
Wage
•
•
•
•
•
•
San Francisco San Jose
Mountain View Sunnyvale
Berkeley
Richmond
Los Angeles
Sacramento
PROPOSED ARE
Davis
Pasadena
Oakland
San Diego
Emeryville
Palo Alto
Long Beach
77
Wage and Hour
Equal Pay Act Expansion
• Revises the “bona fide factor other than sex”
exception
• Echoes pending Federal “Paycheck Fairness
Act”
• Eliminates the “same establishment”
requirement
• Broadens to “same employer”
• Revises the “equal work” requirement to
“substantially similar work and responsibility”
performed
• Must satisfy 2 new criteria
• No discrimination maintained
78
Wage and Hour
…………..
CA Paid Sick Leave Amendments
CACA
• Creates a fifth exception for certain public
sector employees
• Amends the exemption for construction
industry; Removes “onsite work”
reference
• Amends eligibility to 30 or more days “for
the same employer”
• Allows for alternate accrual methods
• 24 hours by 120th day of employment
• Definition of year clarified
79
Wage and Hour
Rest & Meal Periods
Rest Periods
• 10 minutes for every 4 hours worked
Meal Periods
• 30 minutes for every 5 hours worked
• Meal periods are unpaid unless
– On duty
– On site (required)
80
Wage and Hour
Payroll Deductions in California
• Permitted and Prohibited
Hours Worked in California
• Rounding of Hours ( 6 min or 10th/Hour)
• Make-Up Time, Split-Shift Time, etc.
Paid - Time - Off (Vacation or PTO)
• Earned vacation time is considered wages in
California
81
Wage and Hour
Piece Rate Compensation
New Labor Code 226.2
Specifies that piece rate employees shall be
compensated for
1.
2.
Rest and recovery periods and
non-productive time separate from any piece-rate
compensation.
Imposes additional itemized wage statement
requirements:
1.
2.
The total number of compensable rest and recovery
periods, the rate of compensation, and the gross
wages paid for those periods during the pay period;
and
Except for those employers compensating employees
for non-productive time at the applicable minimum
wage, the total hours of other non-productive time (as
specified) the rate of compensation and the gross
wages paid for that time during the pay period.
82
Wage and Hour
Payment of Final Wages
• Termination or Layoff –immediately at
time of termination.
• Employees who quit without giving 72
hours' prior notice must be paid all
wages due, including accrued vacation,
within 72 hours of quitting.
83
Wage and Hour
Itemized Wage Statements
• Requires employer furnish each employee with an
accurate itemized statement.
Commission and Bonus Plans
• Considered “Incentive Compensation”
• Must be included in calculating weighted overtime
rate in nonexempt positions
• Specific Rules Apply
Written Commission Agreements
• AB 1396 – January 1, 2013
• All commission compensation arrangements must be
in writing.
84
EMPLOYEE /
EMPLOYER
RELATIONS
85
Employee / Employer Relations
Exempt v. Nonexempt
• Nonexempt positions are eligible to be paid
overtime and are entitled to meal and rest
breaks.
• Exempt positions are not eligible for overtime
pay and not subject to meal and rest break
regulations.
• Employers must classify positions correctly
based on the essential functions of the job.
• Must take new FLSA salary into account
starting 12/1/2016
86
Employee / Employer Relations
Private Attorneys General Act
Allows 33 days to cure alleged violations concerning “the
inclusive dates of the period for which the employee is paid” or
“the name and address of the legal entity that is the employer.”
Specifies “cure” means employer must issue fully
compliant wage statements to employees for the entire
statutory period (three years)
Limits ability to cure pay statement violations to one time
in a 12-month period.
Urgency Provision made it immediately effective
87
Employee / Employer Relations
Essential California Safety Laws
• Workplace Violence Prevention
• Proposition 65
• Heat Illness Prevention Act
• Asbestos Notification Act of 1989
• “Be a Manager Go to Jail” Act
• No-Smoking Law of 1994
• Wireless Telephone Automobile
Safety Act of 2006
88
FEHA ADDED PROTECTIONS
Provides protection to California employees from
discrimination, retaliation, and harassment for:
•
•
•
•
•
•
•
•
•
•
•
•
•
Age (40 and over)
Ancestry
Color
Religious Creed
Denial of Family and Medical
Care Leave
Disability (mental and physical)
including HIV and AIDS
Marital Status
Medical Condition (cancer and
genetic characteristics)
Genetic Information
National Origin
Race
Religion
Sex (including pregnancy,
childbirth and medical conditions
related to the same)
•
•
•
•
•
•
•
•
•
•
Gender, Gender Identity, and
Gender Expression
Sexual Orientation
Concerted Activity
Military/Veteran Status
Immigration Status
Victims of Stalking, Domestic
Violence/Assault
Undocumented persons with
DMV Licenses (2015)
Unpaid interns & Volunteers
(2015)
Accommodation for Disability or
Religious Beliefs (2016)
To other family working for
same employer for activity of a
Family Member (2016)
89
Employee / Employer Relations
OTHER ESSENTIAL NEW LAWS
• E-Verify Misuse Targeted (AB 622)
• Workers’ Compensation Coverage
Expansion for Immigrants (SB 623)
• Cheerleaders to be Considered
Employees of Professional Sports
Teams (AB 202)
• Additional Sick Pay for Public
Employees who are Veterans with
Service-Related Disabilities (SB 221)
90
Employee / Employer Relations
FEHA Discrimination Provisions
• Employers with 5 or more employees are
covered
FEHA Retaliation
• Employers with 5 or more employees
FEHA Harassment
• Requires employers with 1 or more
employees to take “all reasonable
steps to prevent harassment from
occurring.”
91
Employee / Employer Relations
California Whistleblower
Protection Act
FEHA Disability
• Physical or mental impairment that
“limits” a major life activity. (Substantial
limitation is not required as in ADA)
•
FEHA Religious Dress
Accommodation
92
Employee / Employer Relations
Investigative Consumer Reports
• Candidates must be provided full disclosure
of any and all investigative consumer report
for employment purposes.
• Employer prohibited from obtaining
arrest/conviction information from any source
other than candidate for use in employment
decision.
• Copy within 2 days for external, within 7 days
for internal
93
Employee / Employer Relations
Negligent Hiring
• Found where applicant/employee has a
record that showed propensity to misuse
authority and this record would have been
easily discoverable by exercised due
diligence.
• Due Diligence Measures include:
• Investigative consumer reports
• Pre-employment testing
• Reference checking
94
Employee / Employer Relations
Business & Professions Code 16600
• Section 16600: “Every contract by which
anyone is restrained from engaging in a
lawful profession, trade, or business of any
kind is to that extent void.”
• Exceptions:
- Sale of a business or substantially all of a
business
- Dissolution of a partnership or LLC
- Dissociation of the partner from the
partnership
- Protection of trade secrets
95
Employee / Employer Relations
Employment Related Agreements
Nearly ALWAYS Void in California
• Noncompetition
• Nonsolicitation
Sometimes Permitted in California
• Antipiracy
• Nondisclosure
• Invention Assignment
96
Employee / Employer Relations
Employment-At-Will - Labor Code
Section 2922
• Defined as: “An employment, having no
specified term, may be terminated at the will
of either party on notice to the other.
Employment for a specified term means an
employment for a period greater than one
month.”
• NLRA has issued guidance on this issue as
well.
• At-Will is NOT a reason for termination!
97
Employee / Employer Relations
Wrongful Termination
• An employment action where an individual
has been fired or laid off for illegal reasons.
• Constructive discharge: This occurs when an
employer makes working conditions so
intolerable that an employee feels forced to
resign.
98
Employee / Employer Relations
Requirements for New Employees
For most employers (with a few exceptions), all
new
employees must be provided with the following:
• California State Disability brochure
• Paid family leave notice
• Workers’ compensation pamphlet
• Sexual harassment prevention information
sheet
• New-hire COBRA notification and HIPPA
notices
• Wage Theft Protection Act Notice (Nonexempt only)
99
Employee / Employer Relations
Requirements for Terminating
Employees
In California, the following notices are required
at
the time of termination or separation:
• “For Your Benefit” brochure, DE 2320
• Health Insurance Premium Payment
Program (HIPP) notice
• COBRA and Cal-COBRA rights notice
• Change-of-employment relationship notice
• Final paycheck
10
Employee / Employer Relations
Anti-Slavery & Trafficking
Requires retailers and manufacturers who do
business in California to articulate steps taken to
eradicate slavery from supply & distribution
chain of goods they sell.
10
CALIFORNIA
LEAVES OF
ABSENCE
10
California Leaves of Absence
California Family Rights Act
(CFRA) 1993
Eligible employees receive up to 12
workweeks in a 12 month rolling calendar
of unpaid time off:
Covered employers:
• Employer with 50 or more employees within U.S.
Employee eligibility:
• Employee must have worked for employer for
more than one year and have worked at least
1,250 hours during 12-month period immediately
prior to leave date.
10
California Leaves of Absence
Pregnancy Disability Leave (PDL)
Provisions:
• Provides up to four months of unpaid, job-protected
time off to eligible employees due to pregnancy,
childbirth, or pregnancy-related condition.
• Applies to employers with five or more employees.
• Employees become eligible when unable to perform
essential functions; no length-of-service requirement.
Lactation Accommodation
• Every employer shall provide a reasonable amount of
break time to accommodate an employee desiring to
express breast milk for the employee's infant child.
10
California Leaves of Absence
CA “Kin Care” Leave Amended
California Labor Code § 233
Definition of Family Expanded to Include:
a child, parent, spouse, registered domestic
partner, grandparent, grandchild or sibling.
Now Consistent with paid Sick Leave
10
California Leaves of Absence
Leave for School Activities Amended
California Labor Code § 230.8
Time to find, enroll or reenroll children
School or Child Care Emergencies
Includes Step/Foster/In-Loco Parents
10
California Leaves of Absence
Voluntary Drug/Alcohol Rehab
Programs
• All employers with 25 or more employees
must accommodate as long as there is no
undue hardship.
All Employers
• Jury or Witness Duty Leave
• Leave for Victims of Domestic
Violence or Sexual Assault
• Leave for Victims of Crime
10
California Leaves of Absence
Paid Leave for Voting
Leave for School Disciplinary
Sessions
Volunteer Emergency Service
Leave
• Employers employing 50 or more
employees
Military & Veterans Service Leave
Military Spouse Leave
• Employers with 25 or more employees
Bone Marrow/Organ Donor Leave
• Employers with 15 or more employees
10
CALIFORNIA
POSTINGS &
COMPLIANCE
10
California Compliance
Poster Requirements for All Employers
•
•
•
•
•
IWC wage orders
California minimum wage
Federal minimum wage
Payday notice
“Safety and Health
Protection on the Job”
• Emergency Phone
Numbers
• “Notice to Employees—
Injuries Caused by Work”
• Notice of Worker’s
Compensation Carrier
• Whistleblower Notice
• No Smoking Notice
• Discrimination &
Harassment Prohibited by
Law
• EDD Notice to Employees
• Unemployment Insurance
• Time off to Vote
• Equal Employment
Opportunity is the Law
• Polygraph Protection Act
• Paid Sick Leave
11
California Compliance
Poster Requirements for Employers:
With 5 or more
employees:
• Pregnancy Disability
Leave
With 11 or more
employees:
• OSHA Form 300A
With 50 or more
employees:
• FMLA Notice
• CFRA Notice
Using hazardous or toxic
substances
• Access to medical and
exposure records
Operating Forklifts/Trucks
• Operating Rules for Industrial
Trucks
Farm Labor Contractors:
• Farm labor contractor
statement of pay rates
Public Works
Bodies/Contractors:
• Prevailing wage rate
11
California Compliance
Penalties for Poster NonCompliance
• Failing to post required posters is
typically a crime, punishable by fines
and/or imprisonment.
• The fines and length of jail time vary
with each regulation.
11
California Compliance
EDD Reporting Requirements
• Employers must report information on newly
hired employees and independent contractors
(ICs) to EDD using:
– Form DE 34—Report of New Employee(s).
– Form DE 542—Report of Independent
Contractor(s).
• Completed forms must be reported to EDD
no later than 20 days after new employee
starts work or IC begins providing services.
• Forms may be submitted by regular mail or
electronically.
11
Questions?
11
Thank you for attending!
Contact Info
11
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• Who we are…
• What we do…
• Why you should consider joining a local
chapter…
Who is SHRM
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Recertification Course Numbers
HRCI
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3 PDCs
SHRM Certification
CalSHRM: 2016 CA and
Federal Legislative Update
HRCI Approval # 286635 3.0
General (HR) Credits
shrm.org/hrcompetencies
April 2015 MEMBER BENEFITS WEBCAST ©SHRM 2015