Every new year I try to share the top ten must do tasks for HR. This year it was really hard to keep it to a top ten. Here are the ones that made the list, not in order of importance because they are all important. Please note that this alert is meant to be a brief discussion of laws and not meant to be a full legal analysis. Always get professional help when dealing with issues of employment and labor laws.
- New Parent Leave Act
Effective January 1, 2018, employers with 20 or more employees must provide eligible employees with 12 weeks of unpaid, job protected parental leave to bond with a newborn child or a child placed with the employee through adoption or foster care. To be eligible for this leave, an employee must have worked for you for at least one year and must have worked at least 1250 hours in that year. The leave must be taken within one year of the child’s birth or the date of placement under foster care or the date of adoption.
This leave cannot be used to care for a child who is ill or injured; it is specifically for bonding with a child who is newborn, adopted or placed through foster care.
The Fair Employment and Housing Council is charged with developing regulations interpreting this new law. Until there are adopted regulations in place, there will be questions regarding how this law works. Get professional help if you have a request from an employee to take this leave.
- Minimum Wage Increase
State: $11.00 for employers with 26 or more employees; for employers with less than 26 employees the minimum wage is $10.50 per hour. Caveat: Some cities and counties have enacted their own minimum wage laws and if you have employees who perform any work in those counties or cities, you must follow that city or county minimum wage laws.
For instance, Los Angeles City and Los Angeles County minimum wages increased on July 1, 2017 to $12.00 per hour for employers with 26 or more employees. For employers with less than 26 employees the City and County minimum wage increased July 1, 2017 to $10.50 per hour. Another increase for both Los Angeles City and Los Angeles County will occur on July 1, 2018 when the minimum wage for employers with 26 or more employees will increase to $13.25 per hour; the minimum wage for employers with less than 26 employees will increase to $12.00 per hour.
For my clients in Ventura County, the state law applies.
This is serious stuff. Plaintiff lawyers are salivating over the potential for class action law suits involving employers who do not take minimum wage laws seriously.
- Recruiting and Hiring – Criminal and Salary History Inquiries
Make sure your application and interviews for employment omit questions requesting information that you are not allowed to inquire about at the application stage. New laws prohibit employers from asking applicants about criminal history until a formal offer of employment is made. Do not ask questions regarding an applicant’s salary history. Additionally, do not to ask questions on an employment application related to gender. The distinction here is the term “applicant”.
Once an applicant becomes a “candidate” because a formal offer has been made, certain inquiries may be made with the candidate’s written permission. Inquiries about a candidate’s criminal history must be made in compliance with the California Fair Credit Reporting Act.
No employer can rely on a candidate’s salary history to set a starting salary. You should set a starting salary considering legal issues (California Fair Pay Act), how the starting salary fits in your compensation plan and your ability to pay.
- Paid Sick Leave
Some localities (i.e., Los Angeles City) have their own provisions that may exceed state law. For instance, for employers with employees working in the City of Los Angeles, employees must have 48 hours of sick leave provided as opposed to the state requirement of 24 hours. In Los Angeles City, carryover of unused sick leave must be allowed whether an employer uses the accrual method or not. For my clients in Ventura County, the state law applies.
- Who Gets Overtime – Exempt/Non-Exempt Employee Classification
In June of 2016 the U.S. Department of Labor (DOL) announced a new rule effectively doubling the minimum salary requirement used to determine if an employee is entitled to overtime pay. That rule was to become effective December 1, 2016 but was stayed by a temporary injunction in November 2016 before it could take effect. This issue remains unresolved as of the writing of this alert, however, a court ruling or new moves by Congress or the DOL could change the situation.
Meanwhile, in California, the minimum wage to qualify for the computer professional exemption increased to $90,790.07 per year.
- New Mileage Reimbursement Rate
The new IRS approved mileage rate for reimbursement for miles driven for business purposes is 54.5 cents per mile.
- Use of Marijuana for Recreational Purposes
In California as well as other states, recreational use of marijuana is now legal. An employer CAN still have a policy regarding being impaired by the use of marijuana in the workplace and CAN discipline up to and including termination if an employee is found to be impaired on the job in violation of company policy. However, an employer may be required to reasonably accommodate an employee who uses marijuana as a medical remedy (i.e., post-chemotherapy). See a qualified labor law attorney if this comes up.
- Federal Immigration Enforcement
Effective January 1, 2018, all California employers cannot grant workplace access (non-public areas) to federal immigration officials (such as ICE) without first demanding a warrant. Further, an employer may not give consent to federal agent access to employee records, except I-9 Employment Verification Records, without a subpoena or warrant.
Employers must also provide 72 hours’ notice to all employees in advance of any federal agency’s inspection of I-9 forms to employees and their bargaining representatives, if applicable.
There are more details to this. Consult qualified legal counsel immediately if you are confronted with these situations.
- Make Sure You Have New Required Posters and New Hire Pamphlets
Go to www.calchamber.com to get the posters and pamphlets you need. Consider subscribing to an annual poster update so you don’t have to think about it every year. If you do business in certain cities (i.e., Los Angeles) you may need city-specific posters as well. New hire pamphlets that have mandatory updates include: State DE 2320 For Your Benefit, the Paid Family Leave new hire pamphlet and the Victim’s Rights new hire pamphlet. Update your new hire packages now.
- Stay Tuned!
As legislative or regulatory changes occur I will keep you posted. The Fed rule still says marijuana use in any circumstance is illegal. New appointees to the federal Department of Labor could undo prior regulations and the U.S. Supreme Court has a new appointee. The California legislature has stated emphatically that it will oppose measures coming from the Feds when they conflict with values it holds dear with respect to immigration and civil rights.