If you are a farm labor contractor, or utilize the services of a farm labor contractor, you need to be aware of this change and ensure compliance with this requirement.
[As noted previously, we will provide you with the Labor Commissioner template when it is available.]
For additional assistance please contact Jeanne Flaherty at 805-499-2918 or jflaherty@eladvisor.com.
]]>This new legislation applies only to California Pregnancy Disability Leave so an employee who has been released by her doctor to return to work but chooses to take additional leave to bond with her baby or takes leave under the FMLA or CFRA for another reason would not be eligible for additional payments of insurance premiums by the employer if she has already had 12 weeks of coverage paid by the employer during FMLA or CFRA leave.
For additional assistance with particular situations, please contact Jeanne Flaherty at 805-499-2918 or jflaherty@eladvisor.com.
]]>- As of January 1, 2012 an employer must, at the time of hire, provide every employee with a written notice of 1) the rate(s) of pay and the basis for pay (hourly, salary, piece rate, commission, etc.); 2) allowances, if any taken as part of the minimum wage (e.g., meal or lodging allowances); 3) the regular payday; 4) the name of the employer (including any “dba”); 5) the physical address of the employer’s main office or principal place of business and mailing address, if different; 6) the employer’s telephone number; 7) the name, address and telephone number of the employer’s workers’ compensation insurance carrier; and 8 ) any other information the Labor Commissioner deems material and necessary. The Labor Commissioner is to prepare a template to be made available to employers.
- An employer who pays less than the minimum wage shall be subject to paying restitution wages to the employee.
- Willful violation of certain wage statutes or orders or willful failure to pay a final court judgment or a final order of the Labor Commissioner for wages due will be a misdemeanor.
- The period during which the Labor Commissioner can commence a collection action has been extended from one year to three years.
All employers must be prepared to provide written notices with the wage and other required information to new employees as of January 1, 2012. We will let you know when the Labor Commissioner template is available.
Willful Misclassification of Employees as Independent Contractors
This new law makes willful misclassification, defined as avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor, unlawful. It is also unlawful to charge such an individual for equipment, materials, etc. for which it would be a violation of law (because the employer would be required to provide the items) if the individual were not misclassified.
Civil penalties for such violations range from $5000 - $15,000 and then $10000 - $25,000 if there is a pattern and practice of such violations. Anyone who is found to have violated these provisions will be required to display a notice that enumerates the violations and notifies anyone who believes he/she is misclassified with information for contacting the Labor and Workforce Development Agency. The notice must be signed by an officer and be posted for one year.
All employers should carefully review the basis for classifying anyone as an independent contractor and re-classify individuals as employees if appropriate under the circumstances.
Written Commission Agreements
By January 1, 2013, every employer who pays employees for services rendered in California on a commission basis must have a written agreement with the employee which sets forth the basis on which commissions are to be paid. The employer must give a signed copy of the agreement to every employee to whom commissions are to be paid and obtain a signed acknowledgment of receipt from each such employee. For this purpose commissions do not include short-term productivity bonuses such as those given to retail clerks and will generally not include bonus or profit-sharing plans unless they are tied to a fixed percentage based on sales or profits as compensation for work performed.
Employers currently without written agreements with their commissioned employees should be prepared to provide these on or before January 1, 2013. Those employers with current agreements need to review them to ensure that they meet the above requirements and that they have signed acknowledgments from all employees who have received them.
For more information or assistance with the implementation of these new requirements contact Jeanne Flaherty at Employer’s Legal Advisor, Inc.
]]>Governor Brown has signed legislation effective January 1, 2012 which prohibits employers from failing to maintain health coverage for an employee on a statutorily protected pregnancy leave of up to four (4) months. The employer will be required to pay the premiums normally paid by the employer under the same conditions as if the employee was working.
Unlike a similar provision under the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) which apply only to employers with 50 or more employees, these changes to the California Pregnancy Disability Leave Law apply to all employers with five (5) or more employees. Additionally, employers with more than 50 employees will be required to pay for health insurance coverage for up to four (4) months if the employee is disabled by the pregnancy, as compared to the current 12-week requirement under the FMLA. Also, an employee who may not be eligible for FMLA leave would be eligible for pregnancy leave and would be entitled to the payment of premiums by the employer as well.
This new legislation applies only to California Pregnancy Disability Leave so an employee who has been released by her doctor to return to work but chooses to take additional leave to bond with her baby or takes leave under the FMLA or CFRA for another reason would not be eligible for additional payments of insurance premiums by the employer if she has already had 12 weeks of coverage paid by the employer during FMLA or CFRA leave.
A companion bill signed by the Governor makes it an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, an employee’s right to take CFRA or pregnancy disability leave.
Employers not currently covered by the FMLA and CFRA will need to continue health insurance coverage for employees out on pregnancy leave. Employers already required to pay up to 12 weeks of premiums may need to pay additional premiums if the pregnancy leave is longer than 12 weeks. Your leave of absence policy should be updated to reflect this change as of January 1, 2012.
Employer Use of Credit Reports Restricted
In addition to other restrictions and procedures required under federal and state law with regard to background checks, as of January 1, 2012 specific requirements must be met for an employer to obtain a consumer credit report which includes credit-related information such as credit history, credit score or credit record on a prospective or current employee.
An employer, with the exception of certain financial institutions, may not obtain or use such a report unless the position is generally a position involving significant managerial authority or access to personal or company confidential information (e.g., executives or HR managers); a position with access to or authority over the funds and finances of the company (e.g., treasurers, certain financial officers or accountants); or a law enforcement position.
If a credit report is to be obtained for an individual in, or applying for, one of these types of positions that person must be advised, in writing, of the specific basis (as enumerated above) for use of the report.
Many employers have begun routinely obtaining far-reaching background checks that cover criminal, credit and personal histories of the individual. With this legislation, employers will need to carefully consider whether obtaining information on the credit worthiness of an individual is appropriate based on the position involved.
For more information or assistance with the implementation of these new requirements contact Jeanne Flaherty at Employer’s Legal Advisor, Inc.
]]>However, the NLRA guarantees the right of non-union employees to engage in protected concerted activity. “Protected concerted activity” is defined as activity engaged in by two or more employees or on behalf of two or more employees, generally related to improving the wages, hours and working conditions of employees whether or not related to union activity.
If an employer interferes with the employees’ right to engage in such conduct (such as terminating the employee) the employer can be found to have committed an unfair labor practice and is subject to remedies such as reinstatement and back pay.
The NLRB has implemented a “Final Rule” that will require most private-sector employers to post a Notice informing employees of their rights under the NLRA. Failure to post the Notice may be deemed to be an unfair labor practice.
It is anticipated that the initial posting of this Notice may result in increased actions by employees with regard to wages, hours and working conditions, along with possible union activity in non-unionized workplaces. You need to be prepared to respond to questions from employers regarding this Notice.
The new National Labor Relations Act (NLRA) poster is now available on the NLRB’s website at www.nlrb.gov/poster.
The poster is 11″ X 17″ but can also be posted as two 8 ½” x 11″ sheets put together. Both formats are available on the website. Additionally, employers who “customarily” communicate personnel policies on an internet or intranet site must electronically post the notice there.
Only the English version is currently available, but employers with workplaces where 20% or more of the employees are not proficient in English will be required to post a translated version as well. Translated versions will also be posted on the NLRB website as they are available.
Meanwhile the National Association of Manufacturers (NAM) has filed a lawsuit claiming that the action taken by the NLRB requiring the poster is outside the authority of the Board and two bills have been introduced in Congress to repeal the new rule. We will keep you apprised of any developments which may affect employers’ obligation to post the notice.
For now, the NLRB has postponed the implementation date for the new NLRA notice to be posted by all employers within the jurisdiction of the NLRB (most private employers).
The new effective date for posting the notice is January 31, 2012.
Since this notice will in all likelihood be included in the “all-in-one” poster available from various vendors, most employers can just order a new “all-in-one” poster for 2012 and this requirement will be met.
Particularly since there are lawsuits and legislation pending with regard to the rule requiring the posting of this notice (see above), it is recommended that you wait until January before posting it.
For more information or assistance with the implementation of these new requirements contact Jeanne Flaherty at Employer’s Legal Advisor, Inc.
]]>2012 EMPLOYER’S LEGAL UPDATE
8:00 - 8:30 AM Buffet Breakfast & Registration
8:30 - 10:00 AM Legal Update Presentation
This event is being held at the Ventura County Office of Education at 5100 Adolfo Road in Camarillo. We’ve received a great response already, so please contact Megan Montana to reserve your seat today!
New Federal Legislation
NRLA notice: Is it just another poster?
New California Legislation
What are the new requirements and how will they impact employers?
Written notice to new hires
Restrictions on use of credit reports
Pregnancy leave - payment of insurance premiums
More on the NLRB
What’s all the fuss about social media?
Actions by the DOL and IRS
Are your independent contractors properly classied?
Cases to be reviewed
Are you prepared to defend a lawsuit?
Status of the Brinker case
Importance of consistent action (discrimination claims)
Disability discrimination and the interactive process
Class actions
Speaker: Jeanne Flaherty, Esq.
PIHRA Legal Update
January 19, 2012 (Garden Grove/Anaheim)
January 24, 2012 (Pomona)
January 25, 2012 (Burbank)
For more info, please visit www.pihra.org
]]>Breakfast: Industry Hills Expo Center, 8:00-9:30am
Light breakfast will be served.
Cost: Free
OR
Lunch: Irwindale Community Center, Noon-1:30pm
Lunch will be served.
Cost: Free
Employment laws are changing significantly in 2012 and you don’t want to be left out. Some topics to be covered:
These are just a few of the numerous changes California is going to see in its labor laws. Be proactive, not reactive, and learn about the changes to protect your business!
Space is limited and reservations are required. Please call Shanda Tapia, 562-693-5111, or e-mail Shanda.Tapia@ExpressPros.com.
]]>Wednesday, January 19 | 8-9 AM or 12-1 PM
At the Express Employment Professionals office:
445 E. Esplanade Drive, Suite 110 in Oxnard
Thursday, January 20 | 8-9 AM
At the Conejo Valley Chamber of Commerce:
600 Hampshire Road, Suite 200 in Westlake Village
Contact Megan Montana to reserve your seat:
805.973.1870 or megan.montana@expresspros.com