Wage Orders Update!

It’s already been a busy year for employers with lots of action from the California Legislature, federal and state agencies, local governments, and our courts.  Wage and hour employment law has received a lot of attention from policy makers, enforcement agencies and the courts.

California’s Department of Industrial Relations (DIR) regulates wages and hours of employees with documents called Wage Orders.  There are 17 Wage Orders, each one specific to the industry or occupation it covers.  California employers must comply with the Wage Order that is applicable to its industry or occupation.  It is important to understand which Wage Order covers your business to comply with the correct laws, and more than one wage order may apply in some cases.

In general, the main or primary purpose of your business will determine which Wage Order applies. First, determine whether one of the industry orders covers your business. Industry orders include all but Wage Orders 4, 14, 15 and 17, which are occupation orders.

If no industry order applies to your business, then you must consider each employee’s occupation to determine which occupation order applies (Occupation Orders are 4, 14 and 15). The most common occupation order is Wage Order 4, which covers “Professional, Technical, Clerical, Mechanical and Similar Occupations.”

The DIR publishes a guide called, “Which IWC Order?” (available on the DIR website) that is helpful in determining which Wage Order applies to your business.

Governor Brown signed SB 3, a bill that will increase minimum wage in California to $15 per hour by January 1, 2022 for employers with 26 or more employees and by January 1, 2023 for employers with fewer than 26 employees.  The DIR recently updated most Wage Orders to reflect the 2017 and 2018 increases in the state minimum wage.

For employers with more than 25 employees, the minimum wage increases as follows:

$10.50 per hour on January 1, 2017.

$11 per hour on January 1, 2018.

For employers with 25 or fewer employees, the minimum wage increases as follows:

$10 per hour on January 1, 2017.

$10.50 per hour on January 1, 2018.

One significant requirement in the Wage Orders that has been the subject of recent litigation deals with seating requirements.  Employers are now required to perform a case-by-case analysis of tasks performed at various work locations, such as check out aisles, to determine if a seat is required.  The burden is of the employer to show that compliance with the Wage Order seating requirement is not feasible.

In addition, employers are required to post a copy of the proper Wage Order in the workplace where employees can read it easily.  All California employers must post at least 1 of the 17 industry-specific Wage Orders; and California’s Minimum Wage order (MW-2017).

If you need assistance determining which Wage Order applies to your business, or with applying or interpreting Wage Order requirements, contact an employment law attorney at Schneiders & Associates.

Summer is Coming! Preparing for Heat Illness Prevention

Warm weather is on its way, and employers with outdoor places of employment should prepare now to ensure their employees have a safe workplace.  Heat illness is a serious medical condition resulting from the body’s inability to cope with a particular heat load.  Heat illness can cause damage to the brain and other vital organs, even death.  Many factors can lead to heat illness, including:

  • Exposure to high air temperature and relative humidity;
  • Exposure to radiant heat from the sun and other heat sources;
  • The severity and duration of an employee’s workload;
  • Wearing heavy protective clothing or uniforms; or
  • Employee’s age, weight, health and illnesses.

The Division of Occupational Safety and Health, also known as Cal/OSHA, urges employers to prepare in advance for heat waves and to train employees to recognize the signs of heat illness.  Employers should prepare a written heat illness prevention plan and implement emergency response procedures.  In addition, employers should keep records of training and compliance efforts.

Under current law, the heat illness standard only applies to outdoor workplaces.  However, legislation enacted in 2016 requires Cal/OSHA to develop heat illness rules for indoor workers by January 1, 2019.  Employers should always take steps to provide a safe workplace for their workers.  Depending on the circumstances, some indoor workplaces may be hotter than the outside environment.

It is important employers familiarize themselves with California Code of Regulations, Title 8, section 3395 (Heat Illness Prevention), which contains the heat illness standard for employers with outdoor places of employment.  Some of the requirements include: providing ready access to free, cool, fresh water; providing a shaded rest area for workers to cool down when temperatures exceed 80 degrees; and preparing a heat illness prevention plan, and implementing emergency-response procedures for heat illness.

Failure to have a proper heat illness prevention plan that is specific to the worksite may result in a Cal/OSHA violation.  If you need help drafting a heat illness prevention plan specific to your workplace, or if you have questions about the heat illness standard, please contact our employment law attorneys at Schneiders & Associates, L.L.P.

By: Theodore Schneider, Esq. 

New Regulations on Employers’ Use of Criminal History

Effective July 1, 2017 California’s Department of Fair Employment and Housing (DFEH) issued new regulations on employers’ use of criminal background information in hiring decisions. The new law prohibits employers from using or seeking criminal history information that has an adverse impact on a protected class, unless the information sought is job related.  Further, employers are required to provide written notice to the applicant explaining a decision to not hire based on criminal history. These regulations are legally binding on employers and employees can sue for violations of the law.

The employee has the initial burden of proving that the use of his or her criminal history had an adverse impact on his or her employment.  Once the employee makes such an allegation, the employer must follow a process and demonstrate that the use of criminal history information was “appropriately tailored” to the job.  The employer may do this by conducting an individualized assessment of the circumstances and qualifications of an applicant or employee that was excluded because of the criminal background check. The employer should consider the nature and gravity of the offense, the time passed since the offence or completion of the sentence and the and the nature of the job held or sought.

If the employer decides to revoke an applicant’s job offer due to the criminal offense, the employer must provide the applicant with written notice explaining the decision.  The applicant must then be given a chance to respond before any adverse action is taken.

Still, an individual can bring a discrimination claim if they can show that there is a less discriminatory and more effective alternative means of achieving the business necessity.

There are exceptions when an employer must comply with federal or state law prohibiting employment of individuals with certain criminal records from holding certain jobs.  Also, there are criminal background check mandates for certain positions, such as peace officers.

If your business performs criminal background checks on applicants, or would like to implement a criminal background check policy, please contact our accomplished employment law attorneys at Schneiders & Associates for assistance.

By: Theodore Schneider, Esq. 

Why Your Business Needs An Email Policy

In the contemporary workplace, email is an essential and efficient form of communication. Whether it’s used internally among staff members, or for exchanges with vendors and customers, email is a necessary business tool. At the same time, misuse of this technology can expose an organization to legal and reputational risks as well as security breaches. For this reason, it is crucial to put a formal email policy in place.

First, an email policy should clarify whether you intend to monitor email usage. It is important your employees have no expectation of privacy with respect to emails sent using your company’s email system or computers. It is also necessary to establish what is acceptable use of the system, whether personal emails are permissible, and the type of content is appropriate. In this regard, the policy should prohibit any communication that constitutes unlawful harassment or discrimination, including lewd or racist jokes. In addition, the email policy should expressly state how confidential information should be shared or safeguarded in order to protect the business’ intellectual property.

By having employees read and sign an email policy, which can be included in your employee handbook, a business can protect itself from liability if a message with inappropriate content is transmitted. Further, if personal emails are not permitted, and if employees are aware that their emails are being monitored, employees are more likely to conduct themselves in a professional manner. Because personal emails tend to be more informal and unprofessional, these messages pose a risk to the company’s image if they are accidentally sent to customers. Lastly, email that is used for non-business reasons is a distraction that can adversely affect productivity.

The Takeaway

In order for a policy to be effective, it is necessary to provide training to all the employees, enforce it consistently and implement a monitoring system to detect misuse of the email system. Ultimately, establishing a formal email policy and providing it to all employees will ensure a business remains productive and efficient. If an employee violates the policy, a company will have the ability to take disciplinary action. A well-crafted policy can help to ensure that the company’s image and brand is protected.

If you need guidance on drafting an effective email policy or employee handbook, please contact one of our expert employment law attorneys at Schneiders & Associates, L.L.P.

By: Theodore Schneider, Esq.

Newly Revised Form I-9, Effective January 2017

Federal Law requires that employers complete Form I-9, Employment Eligibility Verification, for every new employee hired after November 6, 1986. The Department of Homeland Security has updated the I-9 Form effective January 22, 2017. Employers must use the new version, dated 11/14/16.

If you have any questions regarding the new Form I-9, please do not hesitate to contact an employment law attorney at Schneider’s & Associates, L.L.P. for advice or counsel.

Can You Keep Pot Out Of Your Workplace After Proposition 64?

California voters passed Proposition 64, the Adult Use of Marijuana Act. Prop 64 legalized the recreational use of marijuana by adults 21 years old and over.

Despite the passage of Proposition 64, smoking or ingesting marijuana in public will remain illegal, as will smoking or ingesting marijuana in places where smoking tobacco is prohibited. Similarly, driving under the influence of marijuana will remain unlawful.

How will this affect the workplace? Employers need not fret, Proposition 64 allows California employers to keep their policies regarding drug free workplaces. Employer policies related to drug possession, use and impairment as well as testing are not compromised with the legalization of marijuana use under Proposition 64.

Workplace Protections Under Proposition 64

Although Proposition 64 legalizes adult recreational use of marijuana, the law provides that it is intended to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The initiative also provides that it should not be interpreted to have the effect of repealing, affecting or restricting:

“The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”

These important provisions protecting employer policies regarding the use of marijuana in the workplace were not included in the previous initiative attempting to legalize recreational marijuana use that failed in 2010. With the inclusion of these workplace provisions, Prop. 64 maintains the status quo concerning workplace safety and drug prevention.

Maintaining a Drug Free Workplace

The legalization of recreational marijuana will create a variation between federal and state law. Marijuana will remain an illegal Schedule 1 substance under the federal Controlled Substances Act, therefore, employers may continue to prohibit use, possession and impairment at work, and may continue to test for use, when such testing is otherwise permitted pursuant to California’ employee drug testing laws and regulations.

Drug Testing

Rights and practices maintaining a safe and drug free workplace will continue, this includes drug testing policies. Both state and federal law impose strict drug testing and other related requirements on employers. Employers must continue to comply with these laws.

For example, employers may conduct pre-employment drug testing to maintain a drug-free workplace. If a California employer conducts pre-employment drug testing of all applicants before hire, the employer may deny employment if the drug test comes back positive, even if the applicant was legally using marijuana under the state’s Compassionate Use Act.

Proposition 64 is not intended to change these workplace policies or practices.

Communication is Key

Employers should take a proactive approach in communicating their company’s drug free workplace policy. Take the time to inform employees that marijuana is prohibited in the workplace and impairment on the job will not be tolerated. This would be a good time to redistribute the company’s drug free workplace policy and to train supervisors to reinforce the policy.

If you have any questions regarding Proposition 64’s impact on your business, or maintaining a drug free workplace, please do not hesitate to contact an employment law attorney at Schneiders & Associates, LLP for advice and counsel.

How to Avoid Common Errors in Employee Handbooks- Episode 3

Here is another quick tip from Attorney Ted Schneider on avoiding common errors in employee handbooks: You can’t put a cap on medical leave. Subscribe to our YouTube channel to keep seeing tips like these.

 

Schneiders & Associates, LLP is a premier Ventura County law firm successfully counseling individual and business clients in matters relating to business transactions, business litigation, employment law, estate planning, real estate law, bankruptcy, homeowners associations, non-profit law, family law, intellectual property, land use and entitlements.

www.rstlegal.com
(805) 764-6370
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Oxnard, CA 93036

How To Avoid Common Errors In Employee Handbooks – Episode 2

Here is another quick tip from Attorney Ted Schneider on avoiding common errors in employee handbooks: overly detailed discipline procedures. Subscribe to our YouTube channel to keep seeing tips like these.

Schneiders & Associates, LLP is a premier Ventura County law firm successfully counseling individual and business clients in matters relating to business transactions, business litigation, employment law, estate planning, real estate law, bankruptcy, homeowners associations, non-profit law, family law, intellectual property, land use and entitlements.

How to Avoid Common Errors in Employee Handbooks – Episode 1

Attention Employers! This year alone there are over 1000 new employment laws in California. Watch and listen to this quick tip from Attorney Ted Schneider on avoiding common errors in employee handbooks. Subscribe to our YouTube channel to keep seeing tips like these.

Schneiders & Associates, LLP is a premier Ventura County law firm successfully counseling individual and business clients in matters relating to business transactions, business litigation, employment law, estate planning, real estate law, bankruptcy, homeowners associations, non-profit law, family law, intellectual property, land use and entitlements.

 

Common Lawsuits Brought Against Small Businesses

By Ted Schneider, Esq.

It is impossible to predict every lawsuit that a small business might possibly face. There is nothing to prevent angry vendors, entitled customers, or disgruntled employees from filing a lawsuit, even if there is no legitimate basis for it. The more a business owner delegates responsibilities to employees, the greater the risk that an employee makes a mistake and exposes the business to a lawsuit. Even the most vigilant, hands on business owner could make a mistake that can lead to a complaint filed against the business.

The most common lawsuits brought against businesses are brought by employees – typically discrimination, wrongful termination suits or claims for wage and hour violation. The impetus for such a suit can be anything from a fired employee feeling slighted to an employee being demoted or passed over for an advancement opportunity. If the employee or candidate believes that the action was taken for a reason related to race, gender, religion, sexual orientation, gender identity, or another protected classification, that employee might file a lawsuit. It is important to document any sort of negative or positive behaviors at work, so that if an employee does complain of discrimination, the court can see the employee’s work history and the real reason why he or she may have been terminated or passed over for a promotion. Disparaging remarks made about any of these protected classes have no business in a work place as they can create a hostile work environment and lead to lawsuits as well. In the event that an employer is faced with a lawsuit, or threat of a lawsuit by an employee or former employee, it is advisable that the employer seek counsel immediately from a knowledgeable attorney experienced in employment law and employment litigation.

Other common lawsuits brought against businesses concern overtime pay. Many employers deny their employees overtime pay in the interest of saving money, often through misclassifying the employee as “exempt” and paying the employee on a salary basis. This can be significantly more expensive in the long run because, if an employee sues, he or she may be entitled to back pay (potentially up to four years), penalties, and applicable attorneys’ fees. It is a good idea to discuss the new federal overtime rules with an experienced employment law attorney and to have contracts or offer letters clearly establishing the relationship between an employer and an employee to minimize confusion. Working with an experienced attorney is the best solution for drafting these agreements and avoiding these types of lawsuits.

It also makes sense to put agreements with vendors and customers in writing. The contracts should include a general description of the work to be performed, a list of any items to be delivered, a project schedule with deadlines, the fee, and the circumstances under which additional fees might be charged, warranties included with the work, indemnification, how long the contract lasts, how it can be terminated, and how disputes will be resolved.

Personal injury lawsuits against businesses are also common. In addition to keeping a place of business in safe condition, it is important that employees are properly classified as employees or independent contractors, and that the business carries the correct worker’s compensation insurance. Most states require employers to carry insurance in case of a workplace injury. Additionally, employees who are injured at work are usually precluded from suing their employer and are instead referred to worker’s compensation courts; however, an employer may be responsible for an injury and associated damages of an employee that has been misclassified as an independent contractor, and therefore no workers’ compensation insurance coverage was in place for the employee.

The attorneys at Schneiders & Associates L.L.P. are well versed in the areas of employment law, contracts, and litigation. For more information on any of the above, please contact us at www.rstlegal.com, info@rstlegal.com, or 805-764-6370.