The Department of Fair Employment and Housing (DFEH) now provides free training for Supervisors AND Employees. To get this free training click on the following link that takes you directly to the training: https://www.dfeh.ca.gov/shpt/
California law requires all employers of 5 or more employees to provide 1 hour of sexual harassment and abusive conduct prevention training to non-supervisory employees and 2 hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. The law requires the training to include practical examples of harassment based on gender identity, gender expression, and sexual orientation.
Many think that just because you are providing the training, you are now compliant. Unfortunately, you have been doing work in California, you know that this is not true. There is always something else. There are two pieces to be compliant: Sex Harassment Training, and Company processes and procedures on how to deal with sex harassment training.
In this article, we will give you an easy checklist to be in compliance. Please note that we are not attorneys and this article is not meant to give legal advice. If you are unsure of anything in this article, please make sure to consult an attorney.
If you have 5 or more employees (part-time, full-time, independent contractors, and temporary staff) in California, by January 1, 2020, you should do the following before then:
- Distribute a copy each of the below links as it relates to sex harassment to each employee –
- Post each of this this in a prominent and accessible location in the workplace (i.e. kitchen, fridge, next to the yearly posters that we sometimes subscribe to, or somewhere people frequently congregate in the office.
- Provide training to Employees by a qualified individual:
- Attorneys who have been members of the bar of any state for at least two years and whose practice includes employment law under the Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964;
- Human resource professionals or harassment prevention consultants with at least two years of practical experience in:
- Designing or conducting training on discrimination, retaliation, and sexual harassment prevention;
- Responding to sexual harassment or other discrimination complaints;
- Investigating sexual harassment complaints; or
- Advising employers or employees about discrimination, retaliation, and sexual harassment prevention.
- Law school, college, or university instructors with a post-graduate degree or California teaching credential and either 20 hours of instruction about employment law under the FEHA or Title VII.
- Training requirements:
- Managers or those in a management role but no title – minimum 2 hours of training and every 2 years after.
- All other employees – minimum 1 hour of training and every 2 years after.
- Promoted managers and new managers – needs to be trained within 6 months of hire.
- Newly hired Managers or those in management role but no title after January 1, 2020 can read and acknowledge receipt of the company’s policy ONLY IF YOU CAN PROVE THEY TOOK THE TRAINING WITHIN LAST 6 MONTHS OF ASSUMING THE NEW POSITION. My position on this is to just give them the training to make it simple.
- Keep training documents for 2 years
- The name of the supervisor who received training
- The training type and date
- The attendance sign-in sheet
- A copy of all certificates of attendance or completion issued
- A copy of all written or recorded materials that comprise the training
- The training provider’s name
- If you are using E-learning: The trainer must maintain all written questions received and all written responses or guidance provided for a period of two years after the date of the response.
- If you are using Webinars: The employer must maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar. The employer must also document all written responses or guidance the trainer provided during the webinar.
- Or look through this link as a resource for employers
Simple answer is it depends.
California Elections Code section 14001 requires employers to post a notice to employees advising them that if necessary, they can take up to two (2) hours of paid time off to vote in a statewide election, if they do not have sufficient time to vote outside of working hours.
Polls are generally open from 7:00 a.m. to 8:00 p.m. If an employee requests paid time off to vote, the employer should inquire as to why it is that the employee is unable to vote outside of working hours. For example, if an employee works from 8 to 5, and lives 30 minutes from the worksite, and there is a polling location near the employee’s residence, the employee should have sufficient time to vote. However, if the employee works longer hours, or works at a remote location, the employee may need paid time off, depending on the particular circumstances.
A sample of this notice, as well as a notice to employers regarding time off for voting is available at the links noted below as a PDF download or, you may call the Elections Division at (916) 657-2166 to order posters of the notices.
Employers must post this/these employee notice(s) 10 days before a statewide election. A statewide election is an election held throughout the state. The employee notice must be posted either in the workplace or where it can be seen by employees as they enter or exit their place of work.
Employees can be given as much time as they need in order to vote, but only a maximum of two (2) hours is paid. Employers may require employees to give advance notice that they will need additional time off for voting. Employers may require time off to be taken only at the beginning or end of the employee’s shift.
The notices to employees and employers regarding employee time off for voting is available as a PDF download by clicking on one of the following links:
In a recent California appellate court decision, the court upheld a trial court’s judgment in favor of Certified Tire and Service Centers (“Certified Tire”), finding the company’s “hourly rate based” compensation system for its tire technicians complied with California’s wage and hour laws.
We wanted to take this time to explain how Certified Tire’s “hourly rate based” compensation system works and how you can use a compensation system such as this for your company’. Although we will not go into all of the details surrounding the case, you can CLICK HERE to read about the interesting decision.
Our analysis begins with how Certified Tire paid their technicians, based on our understanding of the case, which is detailed below:
- All technicians were paid the required minimum wage.
- All technicians were paid for their rest periods and all work that was performed.
- Technicians that performed certain types of work that the company wanted them to perform for customers, received “production dollars.”
- Technicians earned a “tech rate” between 28%-34% of these productions dollars based on achieving certification and/or testing to reach certain levels of proficiently in the company.
- These production dollars were then calculated using a formula:
- (Production Dollars (in pay period) * 95% * tech rate %) / # of hours (in pay period)
- This calculation formula became regular rate of pay and there were NO LIMITS on how high the regular pay could be. The employee would get the higher of the minimum wage or the new rate that was calculated for all the hours worked including overtime in that pay period.
So using the above formula, let’s look at an example of how this unique compensation system works:
- Joe Smith is a technician earning the basic minimum wage of $15.00.
- Joe Smith’s certifications and qualifications within the company earn him a “tech rate” of 30%.
- The current pay period consists of two (2) 40 hour work weeks. Therefore the current pay period has 80 hours.
- Joe Smith worked 88 hours for that pay period (80 hours regular and 8 overtime).
- Joe Smith earned $10,000 “Production Dollars”.
- Using the formula by certified tires, the regular rate was:
- (10,000 * 95% * 30%) / 80 = $35.62.
- Based on this calculation we would use this new regular rate of $35.62 instead of his minimum wage of $15.
- Therefore his new gross pay before taxes for this pay period would be $35.62*80 + 35.62*1.5*8 = $3,277.04.
- If he was at $15.00, he would have only earned $15.00*80 + 15.00*1.5*8 = $1,380.00.
This hourly based compensation system is an example of how companies can encourage workers to perform certain tasks that they might avoid in the course of their job in order to get a better rate of pay without having to do commission based or bonus based systems.
For any questions about implementing polices and how YourVirtualHR, Inc. can help, please give us a call at Toll Free 1-562-888-0126 or email email@example.com for more information.
Many California employers do not understand their legal obligation to pay “premium pay.” An employer’s failure to understand the obligation to pay “premium pay” when owed to an employee, can result in costly litigation pursuant to California’s Private Attorney General Act (“PAGA”). California Labor Code section 226.7 provides that: “(a) No employer shall require an employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.”
So what exactly is “premium pay”? In general, “premium pay” is extra pay, at an employee’s regular rate of pay, that is owed to an hourly (non-exempt) employee when the employee fails to take a rest or meal period by the required time, due to action by the employer.
Examples of what could trigger “premium pay” include, but are not limited to:
- 1. Employer asks employee to perform work which interrupts the 30 minute meal period.
- 2. Employer asks employee to take a delayed meal period, specifically to delay the meal period so it is taken 2 hours past the 5th hour of an employee’s shift;
- 3. Employee clocks back in before the 30 minute meal period is up because her supervisor asked her to report back to work.
- 4. Supervisor asks employee to skip a rest break as Company operations are too busy and the employee is needed at her work station.
The penalty for the above examples in which the employee did not take the meal or rest break as required is “premium pay.” The payment of “premium pay” is as follows:
- One extra hour of pay at the employee’s regular rate for either a missed meal period or missed break; the maximum penalty is two premium pays for each work day. These hours are not used in the calculation of overtime or double time nor will these hours be considered hours worked.
YourVirtualHR can assist with any questions that employers may have on this important topic. Just give us a call!
A common question that we are often asked as the holiday season approaches is how must employers treat holiday bonuses, and are such bonuses subject to overtime calculations. The key questions to determine is whether or not the bonus is a non-discretionary versus discretionary bonus.
While California does not have a definite answer as to what is or is not non-discretionary , YourvirtualHR has come up with a simple concept to consider: is the bonus payment considered “earned” or not, meaning did the employee have to somehow qualify in order to get the bonus. Applying this concept should help employers determine whether or not a bonus is discretionary, and thus subject to overtime calculations.
Here are some questions for employers to consider:
- Do employees have to qualify for the bonus, i.e. earning/qualifying for the bonus is based on factors such as service years or performance. (If the answer is yes, then it is possible the bonus is non-discretionary;
- Is there a written bonus formula that is provided to employees, which includes the specifics of how they will earn the bonus? If yes, consider some examples and additional questions below in determining whether or not a bonus is “earned”:
- A policy that states that every year in December and an employee will receive a $100 bonus and/or receive a bonus that is paid at a certain time, could be considered earned and non-discretionary;
- A policy that states “Because our employees are valuable part of the company, from time to time, the company may evaluate and possibly grant a discretionary bonus or provide other perks or events to employees, amounts, details, and timing of payments are determined and/or paid at the sole and absolute direction of the employer” can probably be considered discretionary because there are no qualifications as to how the bonus is earned;
- A company decides that in December 2018, in order to show appreciation for everyone’s hard work, and a bonus will be paid in the amount of “x” for all employees. This could be considered discretionary. Then in December 2019, the company decides that another amount “x” will be paid around the same time, as the company had a profitable year. In December 2020, the company does not do as well and so offers a company luncheon to thank everyone but no bonus. This is probably a discretionary bonus.
- Do all employees receive the same bonus regardless of performance or length of service, position, etc., or do employees have to qualify for the bonus? For example, do employees have to pass a probationary period, not be written up, be in good standing, or perform according to a certain standard? If there are qualification requirements, then the bonus could be considered a non-discretionary bonus because the employee has to “earn/qualify” in order to receive the bonus;
- Is the amount of bonus significant. For example, $100.00 versus one month at the employee’s regular pay. If it is significant, it could be considered a non-discretionary bonus. (However, this is a very gray area. We have not not encountered any issues with the amount of payment, but rather the consistency and fairness of the payment in question).
Before you create a discretionary bonus policy, at least consider these factors and always consult with your employment law attorney to make sure you are in compliance with California’s overtime laws as they apply to discretionary bonuses.
For any questions about implementing an polices and how YourVirtualHR, Inc. can help, please give us a call at Toll Free 1-562-888-0126 or email firstname.lastname@example.org for more information.
DFEH Settles Disability Discrimination Case Against County of Los Angeles Involving Pre-Employment Physicals
The California Department of Fair Employment and Housing (DFEH) has settled an employment discrimination case with the County of Los Angeles involving two complainants who were allegedly denied or delayed positions with the County due to the County’s pre-employment medical examination requirements, which the DFEH alleged were overly broad. According to the DFEH’s complaint, one of the complainants was denied a position with the Los Angeles County Sheriff’s Department for more than 4 years because during her pre-employment medical exam she revealed that she had a thyroid condition, although she did not have any restrictions on her ability to perform the job. The other complainant was allegedly denied a position with the County when he revealed during his pre-employment medical exam that he had a prior knee injury although he too did not have any work restrictions. As part of the settlement, the County agreed to amend its civil service rules about pre-employment medical examinations and will overhaul its medical examination process to only consider medical information that is directly relevant to the job being applied for. The County will also pay a total of $560,000. Of that, $410,000 will be paid directly to a complainant and $150,000 to the DFEH for fees and costs. (The second complainant previously resolved the financial aspect of his case.)
For more about this article, read here.
The Department of Labor (DOL) is reporting that a company, California Cartage Company LLC, which is based in Long Beach, California, will pay $3,573,074 to 1,416 employees after the DOL found the company violated federal contract provisions of the McNamara-O’Hara Service Contract Act (SCA). Investigators allege that California Cartage Company LLC violated the SCA by failing to pay prevailing wages, and required health and welfare benefits, to employees for work performed at a Centralized Examination Station operated for the U.S. Customs and Border Protection (CBP) at the Port of Los Angeles/Long Beach. Investigators also allege the company failed to apply the SCA clauses and wage determination to contracts for five subcontractors, which resulted in the subcontractors’ failure to pay required prevailing wages and fringe benefits to their employees as well. The contract required certain hourly rates, depending upon the positions workers held, and also required the payment of fringe benefits, holiday, and vacation time.
Read here for more details about this lawsuit.
SB 358, California’s Fair Pay Act (Labor Code § 1197.5): requires that men and women receive equal pay for substantially similar work even if they work in different locations. The legislation was passed in 2016. In response to this, in particular to assist with implementation of the new law, the California Commission on the Status of Women and Girls created the California Pay Equity Task Force. The Task Force has issued extensive guidance for employers including, “Tips for Pay Equity Compliance”, “Step by Step Pay Equity Evaluation”, and “How to Promote Pay Equity Culture.”
Read more about this helpful tool here.
The U.S. Equal Employment Opportunity Commission (EEOC) has released its FY 2018 sexual harassment data today – highlighting its work over the past fiscal year to address the pervasive problem of workplace harassment. What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment details the EEOC’s efforts to enforce the law, to educate and train workers and employers, and to share its expertise on new solutions to reduce harassing conduct in the workplace. Based on preliminary data, in FY 2018, the EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment and recovered nearly $70 million for sexual harassment claims through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.
For more about the report read here.