Category: Employment Law

Many employers use rounding to adjust an employee’s work hours to the nearest whole time increment, such as five or ten minutes. Employers beware! However, in a newly published decision, timekeeping rounding must not apply to meal periods.

California employers must provide employees with a 30-minute, uninterrupted meal period that begins no later than the end of the fifth hour of work. If an employee is not provided the timely and uninterrupted meal period, the employee is due one hour of premium pay.

In the case of Donohue v. AMN Services, LLC, the California Supreme Court ruled against an employer’s timekeeping practice of rounding meal period timeclock punches. The Court further held noncompliant meal periods results in a rebuttable presumption of liability against the employer at the summary judgment stage.

AMN used an electronic timekeeping system to track employees’ compensable time. Employees used their computers to punch in and out at the beginning and end of lunch. Employees could also ask to manually adjust any inaccurate time punches, such as forgetting to clock out for lunch. The computer system automatically rounded employee time punches to the nearest 10-minute increment.

The Supreme Court used the following example to illustrate how AMN recorded meal break punches:

“[I]f an employee clocked out for lunch at 11:02 a.m. and clocked in after lunch at 11:25 a.m., [AMN’s timekeeping software] would have recorded the time punches as 11:00 a.m. and 11:30 a.m. Although the actual meal period was 23 minutes, [AMN’s timekeeping software] would have recorded the meal period as 30 minutes.” Another example is if an employee clocked in for work at 6:59 a.m. and clocked out for lunch at 12:04 p.m., the system would record those time punches as 7:00 a.m. and 12:00 p.m. In this example, the employee would have begun their meal period after five hours and five minutes of work, but the timekeeping system would not have recorded that violation.

The California Supreme Court ruled that it is the employer’s responsibility to implement compliant meal period policies that allow employees to take the full, uninterrupted 30-minute meal period without reduction of any kind, including from neutral rounding timekeeping practices.

Further, an employer’s timekeeping policy must ensure that the employee being relieved from duty for a 30-minute meal period is accurately reflected in the employer’s time records.

Employers using rounding systems should consult with legal counsel before continuing such practice. If you have questions about your business’s rounding or timekeeping policies and procedures and would like to determine if your practices comply with the Supreme Court’s decision and applicable law, contact Schneiders & Associates, L.L.P. to speak with an employment law expert.  

By: Ted Schneider, Esq.

Large employers are now required to provide demographic pay data to the California Department of Fair Employment and Housing (DFEH) by March 31, 2021. SB 973 requires private employers of 100 or more employees, that are also required to file the federal EEO-1 report with the Equal Employment Opportunity Commission (EEOC), to report demographic and pay data information to the DFEH.

The reporting year will be the year preceding the due date for the report and should include a “snapshot” of the workforce for any single pay period of the employer’s choice between October 1 and December 31 of the reporting year.

Employers must report the number of employees by race, ethnicity and sex whose annual earnings fall within each of the 12 pay bands and seven race/ethnicity categories.

What must be included in the report?

SB 973 requires that the pay data report include:

1. The number of employees by race, ethnicity, and sex in each of the following job categories:
2. Executive or senior level officials and managers.
3. First or mid-level officials and managers.
4. Professionals.
5. Technicians.
6. Sales workers.
7. Administrative support workers.
8. Craft workers.
9. Operatives.
10. Laborers and helpers.
11. Service workers.
12. The number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey.

Pay Bands

• $19,239 and under
• $19,240 – $24,439
• $24,440 – $30,679
• $30,680 – $38,999
• $39,000 – $49,919
• $49,920 – $62,919
• $62,920 – $80,079
• $80,080 – $101,919
• $101,920 – $128,959
• $128,960 – $163,799
• $163,800 – $207,999
• $208,000 and over

Race and Ethnicity

• Hispanic/Latino
• Non-Hispanic/Latino White
• Non-Hispanic/Latino Black or African American
• Non-Hispanic/Latino Native Hawaiian or Other Pacific Islander
• Non-Hispanic/Latino Asian
• Non-Hispanic/Latino American Indian or Alaskan Native
• Non-Hispanic/Latino Two or More Races
• The total number of hours worked by each employee counted in each pay band during the “Reporting Year.”
• The employer’s North American Industry Classification System (NAICS) code.
• Employers may, but are not required to, provide clarifying remarks concerning the information in the report.

The DFEH counts the total number of employees on the employer’s payroll toward the 100-employee (at least one employee in California) reporting threshold. DFEH is allowing a 30-day extension for employers who have been impacted by the COVID-19 pandemic. Deferral requests can be filed online using DFEH’s online form. Employers can submit their reports on the DFEH website.

If you have questions regarding the new reporting requirement or other employment law questions, please call us today!

By: Ted Schneider, Esq.  

The emergence of COVID-19 has changed the world as we once knew it; therefore, it should come as no surprise that the virus would impact employment law as well. California’s ever-changing employment laws will have employers scrambling to keep up in 2021! The employment law attorneys at Schneiders & Associates are prepared to help! Below are some of the significant changes related to COVID-19 that employers should look out for as we head into the new year.

SB 1159: COVID-19 Workers’ Compensation

SB 1159 provides that if a California employee tests positive for COVID-19 during an “outbreak” at the employee’s worksite (not including the employee’s home), the employee may be awarded workers’ compensation benefits, including full hospital, surgical, and medical treatment. Compensation is based on the presumption that the employee contracted COVID-19 at work. It is now the burden of the employer to disprove that claim.

AB 685: COVID-19 Reporting

AB 685 establishes employer reporting and noticing requirements upon notice of a potential exposure to COVID-19 at the workplace. Employers are required to provide notice to employees who were potentially exposed to COVID-19 within one business day of receiving notice of a COVID -19 exposure.

Employers are also required to notify their local public health agency within 48 hours of a COVID-19 “outbreak” (3 or more cases within a 2-week period).

Cal/OSHA can issue an Order Prohibiting Use (OPU) to shut down a worksite that exposes employees to an imminent hazard related to COVID-19 and can issue citations for serious COVID-19 violations without giving prior notice.

AB 1947: Extended Time Period to File a DLSE Claim

AB 1947 amends existing labor law, which prohibits discrimination or retaliation against employees who complain about Labor Code violations or other violations of law, to provide for a longer time for employees to report complaints and file a claim with the Division of Labor Standards Enforcement (DLSE) – extending the deadline from 6 months to one year. Any person who believes that they have been discharged or otherwise discriminated against in violation of any labor law may now file a complaint with the DLSE within one year after the occurrence of the violation.

AB 1867: Supplemental Paid Sick Leave

AB 1867 expands supplemental paid sick leave for COVID-19-related reasons for employers not covered by the federal Families First Coronavirus Response Act (FFCRA), insuring every employee has access to paid sick days if they are exposed or test positive for COVID-19, including health care providers and first responders that are excluded from the FFCRA.

Employees who work for covered employers can take COVID-19 supplemental paid sick leave if the worker is:

• Subject to a federal, state or local quarantine or isolation order related to COVID-19;

• Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

• Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Employees working from home are not eligible for supplemental paid sick leave.

AB 2043: Occupational Safety and Health – Agricultural Employers and Employees

AB 2043 requires employers to disseminate information on best practices for COVID-19 infection prevention to agricultural employees, in both English and Spanish. The bill also requires that Cal/OSHA work with employers and employees on outreach campaigns targeting agricultural employees.

AB 2537 and SB 275: PPE Requirement

AB 2537 and SB 275 require that employers provide certain employees with Personal Protective Equipment (PPE) and maintain a three-month stockpile of PPE.

In addition to COVID-19 related employment law updates, there are several other employment law changes that the anticipated new year will bring! Mark your calendar for Friday, January 22 at 8:30 a.m., when our employment law experts will discuss the new employment law changes in 2021, via Zoom.

Existing law, commonly known as the “ABC” test and codified by AB 5, makes it more difficult for companies to classify workers as independent contractors rather than employees. The hiring entity has the burden of establishing that an individual is an independent contractor, not an employee, under the “ABC test.”

Under the existing “ABC” test, a worker will be deemed to be an employee, unless the hiring entity proves: (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Each of these requirements needs to be met in order for the presumption that a worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor. 

Existing law contained certain exceptions from the “ABC” test for certain categories of workers.  AB 2257, signed by Governor Newsom on September 4, 2020, will add some additional exceptions to the “ABC” test. Exemptions were added for musicians, writers, photographers, tutors, interpreters and other industries. The bill additionally exempts certain occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions. The bill also exempts a musician or musical group for the purpose of a single-engagement live performance event from the “ABC” test, thus making it easier to classify such musicians as independent contractors.  This will allow industry professionals and musicians to accept freelance work once again. AB 2257 additionally exempts artists, appraisers, insurance field representatives, and youth sports coaches, allowing them to work as independent contractors. 

However, each of the foregoing exceptions contains numerous criteria that must be satisfied before a hiring entity can rely on the new exemptions rather than applying the “ABC” test. For example, musicians and vocalists who are not royalty-based participants in the work created during a specific engagement must be treated as employees for purposes of receiving minimum and overtime wages for hours worked during the engagement.

For a still photographer, photojournalist, or videographer, in order to avoid the “ABC” test and be classified as an independent contractor, the worker must work under a written contract that specifies the rate of pay, the worker must not be replacing an employee who performed the same work at the same volume for the hiring entity, the worker cannot primarily perform the work at the hiring entity’s business location, and the worker cannot be restricted from working for more than one hiring entity.

Therefore, although additional occupations and industries have been added to AB 5 as exempt from the “ABC” test, each occupation or worker must be individually analyzed pursuant to the specific criteria set forth in AB 5, as amended by AB 2257.

If you would like more information on how this new law could affect your hiring of workers, contact Schneiders & Associates, L.L.P. today. 

By: Ted Schneider, Esq.

Attorney Chris Correa recently presented a COVID-19 employment law update to the members of the Ventura Chamber of Commerce. The discussion covered employment issues related to COVID-19, such as paid time off, getting employees back to work safely, workers’ compensation, and much more! If you missed this seminar, please click HERE to watch!

Each new year brings about new changes in employment law. Governor Gavin Newsom signed into legislation a number of new laws that impact California employers. Here’s what to look for in 2020:

AB 5 – New Employee Classification Test: The law codifies and modifies the California Supreme Court’s “ABC test” from its decision in the Dynamex case last year. The law severely limits the ability of California companies to classify workers as independent contractors rather than employees. Stated in an abbreviated manner, to satisfy the ABC test and classify a worker as an independent contractor, the company must prove that the worker is (A) free from the company’s control, and (B) performs work outside the company’s primary business, and (C) is regularly engaged in the trade the worker is hired for, independent of work for the company. There are specific exemptions for certain industries.

AB 9 – Statute of Limitations for FEHA Claims Expanded: The period of filing a complaint for workplace harassment, discrimination or retaliation has been extended from one to three years.

AB 25 – Employee Data Exempt from CCPA: The current California Consumer Privacy Act (CCPA) allows consumers various rights with regards to their personal information held by businesses, including to have their personal information deleted. The bill broadly included employees and job applicants, who could potentially ask to have information deleted from their personnel files. Under the new law, employee data is exempt from the CCPA; however, the exemption is only good for one year.

AB 51 – Banning Mandatory Employment Arbitration Agreements: Beginning January 1, 2020, employers are prohibited from requiring any applicant for employment or employee to sign an arbitration agreement as a condition of employment or continued employment. Employers cannot retaliate against or terminate any employee or applicant who refuses to sign an arbitration agreement.

SB 83 – Expansion of Paid Family Leave: Beginning July 1, 2020, Paid Family Leave (PFL) benefits from California’s State Disability Insurance program will be increased from six to eight weeks.

SB 142 – Expanded Lactation Accommodation Requirements: Employer requirements to provide appropriate workplace lactation accommodations have been expanded. The added requirements require employers to provide a lactation room close to the employee’s work area, shielded from view, and free from intrusion. In addition, employers must provide access to a sink with running water and a refrigerator. Employers must implement a lactation accommodation policy.

SB 188 – Protected Hairstyles: Under FEHA, the law prohibits discrimination and harassment based upon a person’s natural hairstyle. Natural hairstyles such as “braids, locks, and twists” are now protected.

SB 778 – Extending Deadline to Complete Sexual Harassment Prevention Training: Sexual harassment prevention training deadline has been extended from January 1, 2020 to January 1, 2021.

Join us in late January for our Annual Employment Law Update! Our attorneys will discuss these new employment laws in detail and provide you with the tools and information your California business needs to ensure you are in compliance for 2020.

Beginning July 1, 2019, CalSavers Retirement Program became a new employment law in California.  CalSavers is a state-run retirement savings program for private-sector workers whose employers do not offer a retirement program (such as a 401k plan). Employers with five or more employees are required to either provide a retirement plan for their workers or register for CalSavers and facilitate employees’ contributions to Individual Retirement Accounts. An employer that offers a tax-qualified retirement plan is not eligible and its employees cannot participate in the CalSavers program.

Deadlines

CalSavers is scheduled to open for employers to register on July 1, 2019 — but employers need not register until June 30, 2020. Deadlines for compliance vary according to the size of the business, as follows:

Employers with more than 100 employees must register by June 30, 2020;

Employers with more than 50 employees must register by June 30, 2021; and

Employers with five or more employees must register by June 30, 2022.

Employer’s Responsibility

Within 30 days of registering, employers need to provide the CalSavers program administrator with a collection of personal information about each employee. This information includes: the name, Social Security number, date of birth and contact information for each eligible employee.

Employers must ensure that each employee receives a packet of information from the program administrator. Employers will need to calculate the appropriate rate of deduction from each employee’s wages, based on a schedule promulgated by the state.

Employers will deduct each employee’s contributions to the CalSavers program from their salary and remit the contributions to the program administrator within seven days of deduction.

In addition, if a new employee is hired after registration, that individual’s information must be submitted to the program administrator within 30 days of the date of hire.

Registering your business is easy. Visit the CalSavers website to register. Employers do not pay any fees for their employees’ participation in the CalSavers program and are not required to contribute to the CalSavers program, aside from facilitating the program and submitting participating employees’ contributions via payroll deduction.

The CalSavers program will ensure nearly all Californians have access to a workplace retirement savings program. Employers are prohibited from encouraging or discouraging employees from participating in the CalSavers program, or from providing any advice about any decisions related to investment and contribution relating to the program.

If you have questions about the CalSavers program or how it affects your business, please contact an employment law attorney at Schneiders & Associates today.

By: Ted Schneider, Esq.