Transgender Rights - Required Poster SB 396

Don’t Forget This New Posting Requirement

A new California law (SB 396) requires all California employers to post a “Transgender Rights in the Workplace” poster starting January 1, 2018.

The new transgender rights poster must be displayed along with other mandatory workplace notices in a conspicuous and available location. The Department of Fair Employment and Housing (DFEH) has developed the poster - CLICK HERE to download the poster.

The poster contains regulations that went into effect on July 1, 2017.

Topics covered by the poster include:

• Definitions of terms such as transgender, gender identity, gender expression and gender transition.
• A discussion on the right of employees to use restrooms, locker rooms and other similar facilities corresponding to their gender identity.
• The importance of allowing an employee to dress in accordance with the employee’s gender identity and expression.

SB 396 also requires the mandatory sexual harassment and bully prevention training (AB 1825 & AB 2053) to include a section regarding gender identity, gender expression and sexual orientation. This training requirement applies to employers with 50 or more employees and requires training of all supervisors.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation. eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Refresher on California’s Fair Pay Law

New Fair Pay requirements went in to effect in 2017 and state that an employer must pay the same for “substantially similar” work, when viewed as composite of skill, effort and responsibility.

The new regulations eliminated the prior standard of comparing work at the “same establishment.”  Now employees can compare their pay to employees who do not perform same work or who are not employed in same position or location.

What is substantially similar work? According to the California Senate example:

• Female secretary’s primary duties – answer telephone, make copies, transmit correspondence
• Male assistant’s primary duties – answer telephone, transmit documents, perform light filing tasks
• “Plaintiff’s burden would be to show that the man and woman should be paid the same wages because, when viewed as a composite of skill, effort, and responsibility, they were performing substantially similar jobs.”

The key is to look beyond job titles, the similarities can be subtle, some other examples:

• Hotel housekeepers (mostly female) v. hotel custodians/janitors (mostly male)
• Female cafe workers preparing meals on behalf factory’s shop floor workers vs. male cooks who make lunches for senior managers
• Call center customer service reps vs. call center sales vs. call center support

What are the exceptions for when pay can be different?

• Seniority system
• Merit system
• System that measures earnings by quantity or quality of production
• Other bona fide (nondiscriminatory) factor consistent with business necessity as defined as an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve
• Local job markets can be a factor for differences

Who has the burden of Proof?

Employee’s must show different pay under new “substantially similar” work standard. The employer must demonstrate that the differences are legitimate and nondiscriminatory.

Beginning in 2018:

• Employers may not rely on the salary history of an applicant to make an offer or determine salary.
• Employers may not seek salary history of applicant.
• Employers must, upon reasonable request, provide the pay scale for a position to an applicant.
• Applicants may voluntarily and without prompting disclose salary history information.
• Employers are not prohibited from considering voluntarily disclosed salary history information in determining salary.

Best practices for employers to protect themselves:

• Update hiring processes
• Update employment applications
• Train interviewers to not ask for prior salary information
• Have pay scales available upon request
• Have a form available for applicants to sign to document a voluntary and unsolicited disclosure of salary information.

All employers should analyze the content of their jobs to identify substantially similar work and to identify disparities in compensation.

It is recommended that any analysis done be conducted with employment counsel so that the attorney-client privilege is maintained. A self-audit conducted without counsel will be subject to discovery in any litigation, and failure to correct problems will be dangerous.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation. eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Risks of a Contingent - Temporary Workforce

Contingent Workforce Arrangements

Continue to become more popular with employers.

Contingent Workforce includes:

1. Temporary staffing
2. Long-term staffing
3. Employee leasing
4. Third-party payroll providers
5. Managed services.

As the contingent workforce continues to grow, employers need to be aware of the risks associated with using non-traditional working arrangements.
Because temporary workers don't have long-term relationships with employers, they tend to be less loyal, potentially putting trade secrets and intellectual property at risk. Temporary workers are given access and privileges on their employers' IT systems and some are not informed of policies and procedures regarding data information and access during their onboarding.

Employers should provide security guidelines and processes to contingent workers during their onboarding. The same procedures for managing security access for regular staff should be applied to contingent workers. Contingent workers should also sign confidentiality and nondisclosure agreements to protect proprietary information.

Another risk of employing contingent workers for the long term is that courts may consider them eligible to for employer’s benefits. Employers should implement a tenure policy where after a certain period of time, a temporary employee must leave the position. In addition to considering a tenure policy, employers should ensure that their corporate benefits plan documents clearly define who is a nonemployee and specifically eliminate these workers from eligibility for benefits.

Employers should also consider unemployment compensation issues when hiring temporary workers. Often temporary workers will identify the employer as the business, not the temporary agency who provided the assignment. The employer will then deny the claim which can lead to additional inquiries as to the worker’s status. In some instances, both the temporary agency and the employer may be found to be liable as a joint employer.
Employers should weigh the benefits of having a flexible contingent workforce with some of the risks mentioned above. By putting a few safeguards in place, employers can help protect themselves from any potential pitfalls.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation. eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

eqHR Solutions - Team Building

- Just Having Fun -

 Learning how to make Beef Wellington

Ann - Alex - Bernadette - Bob

June - Lauren - Patty - Will

South Bay Cooking School

December 6, 2017

California Expands “Ban the Box”

“Ban the Box” Provisions

In January 2018, a new law will be in effect that amends the Fair Employment Housing Act (FEHA) expands current “Ban the Box” provisions to all public and private employers. This means that employers may not:

1. Request an applicant’s criminal conviction history on an employment application

2. Inquire any applicant’s conviction history until issuing a conditional offer of employment

3. Consider or share certain information regarding arrests, participation in diversion programs, or certain enumerated convictions obtained during a criminal background check performed once a conditional offer of employment has been made.

In addition, an employer may not deny employment based “solely or in part” on an applicant’s conviction history, the employer must first:

1. Conduct an assessment to determine whether the applicant’s conviction history has a “direct and adverse relationship with the specific duties” of the job for which the applicant is being considered
2. Give notice to the applicant of a preliminary decision to deny employment based on the conviction history
3. Allow the applicant time to respond to the notice and to provide evidence to dispute the accuracy of the conviction history
4. Consider the evidence submitted by the applicant. If the employer makes a final determination to still deny employment after consideration of the evidence provide by the applicant, the employer must provide the applicant with a written notice of its final decision.

The requirements and procedures of this new law are similar to the Fair Chance Ordinance provisions enacted in the City of Los Angeles earlier this year.

Employers in Los Angeles are well prepared for this new law. Others, however, should take this opportunity to scrutinize their hiring procedures and forms and to also train managers on the new provisions.

At the same time, employers should also ensure that their job applications do not ask for prior salary history and that hiring managers and recruiters do not ask for this information.

Employers must review and update their job application and interview forms and procedures to eliminate any requests for disclosures of criminal conviction histories. Employers should also review and update background check authorization forms and procedures. Employers should also develop or update “adverse action” notifications and procedures.

Expanding of both the “Ban the Box” and the Fair Pay Act in January 2018 mean that employers must review their applications and their hiring procedures to ensure they are in compliance with these laws.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.

eqHR Solutions offers professional, tactical and strategic, human resources support, ADP product implementation/training and payroll processing services for businesses throughout Southern California.

California Employers Obligation to Prevent Harassment and Discrimination in the Workplace

It’s been all over the news lately—dozens of stories, accusations and apologies surrounding harassing and inappropriate behavior in the workplace.

We work in California, but not even our state legislature, who has passed more anti-harassment laws than any other state, is immune to the onslaught. So how do employers protect themselves?

First, all California employers should remember the obligations to prevent and correct any potential harassment and discrimination in the workplace.

These include:

1. Employers all legally required to adopt a written discrimination, harassment, and retaliation prevention policy. This policy must be distributed and acknowledged by all employees. This policy should include:

• A definition of sexual harassment
• A complaint mechanism regarding harassment
• An outline of disciplinary steps that may be used in harassment cases
• Statement that confidentiality of complaint will be preserved when possible
• Prohibition against retaliation toward employees who complain
• Statement that supervisors must report any complaints
• Confirmation that the employer will conduct a fair and timely investigation

1. Employers, regardless of size are required to distribute California’s harassment pamphlet DFEH-185 to all employees.

2. California employers with 50 or more employees are required to provide at least two hours of interactive training regarding sexual harassment to all supervisors. Additionally, these employers must also provide bully prevention training, AB 2053, and, as of 01/01/2018, gender-based identification/harassment training, SP 396.

3. Employers must investigate all complaints. If an employer knows or should have known of the inappropriate conduct and failed to take appropriate action they will be held liable under the law.

Speaking of being held liable, when is an employer liable for harassment?

According to California law, an employer is liable if:

1. They know or should have known of the conduct and fail to take immediate and appropriate corrective action
2. They fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring
3. The harassment occurs by a manager
4. The harassment occurred by a non-management employee, and the employer does not take immediate and appropriate corrective action to stop the harassment once they learn about the harassment

Now that we know what our obligations and responsibilities are under the law, what do we do?

Never ignore a claim, rumor, or "open secret" about bullying, sexual harassment or any other harassing conduct.  Failing to take even a whisper of a problem seriously can have serious ramifications for your company. Despite the possible financial and legal consequences, failing to deal with issues sends a message that unacceptable behavior is part of the organization's culture.

It is important to be proactive to prevent possible problems. Having a policy and conducting the supervisor training is not enough without putting forth an effort to create a corporate culture that is fair, diverse and safe.  Educate your entire employee base not only on sexual harassment, but also communication, diversity, and the dangers of implicit bias.

Creating a culture where harassing and bullying behavior is unacceptable is your best defense against the damage a harassment claim can do to your organization’s finances and reputation.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

We recommend with insurance brokers that every employer, regardless of size, should provide sexual harassment, bully prevention, and gender-based identification harassment training to their supervisors and staff (non-supervisors) to reduce employment harassment claims and lawsuits

Understanding At-Will Employment in California

At-Will is a Lazy Excuse for Terminating an Employee

Many managers mistakenly believe that “at-will” can be a carte blanche to get rid of a troublesome or unpopular employee. California law stipulates that employees are employed at will. This entails that either the employer or the employee may terminate employment at any time, with or without cause.

Cause is defined under California law as "a fair and honest cause or reason, regulated by good faith on the part of the employer."

A fair and honest cause reason can be open to interpretation, but employers should not presume that they are safe from being sued for employment wrongs, such as discrimination, retaliation, violations of specific statutes (including those protecting whistle-blowers or employees who take family or medical leave) or for terminations that violate public policies set forth in statutes or regulations.

When managers come to me and say they want to terminate an employee and think they are protected under “at-will” I always caution them.

At-will does not mean that you do not have to document employee's performance or have a legal reason for terminating the employee.

It is never a good idea to tell an employee that "we are exercising our employment-at-will rights and terminating you." There are so many reasons for employee lawsuits, especially in California, employers should always document the reasons for terminating an employee. This includes providing verbal and written warnings, when appropriate, for poor job performance and less serious types of misconduct such as attendance policy violations. These warnings will help protect against a later claim that the termination was driven by an unlawful reason such as discrimination or retaliation.

Many CEOs and business owners believe that at-will allows them to terminate an employee simply because they don’t like them. And while in their mind this may be the reason, the employee may be able to prove that there were other, illegal reasons for the termination.

If this employee is a female, she may claim she was fired because of her gender and the employer has no written documentation to support otherwise. Saying that she wasn’t a culture fit to the organization will not stand up in court if there is no demonstrable effort on the part of the employer to give the employee a chance to improve her performance or change her behavior.

Employers should never be lazy and fall back on at-will alone as a reason for termination. These issues are not pleasant for managers to tackle, but documenting a performance improvement plan can go a long way in defending a potential costly wrongful termination or discrimination suit in the future.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

California Rules - Time off for School Appearance or School Activity

We often get questions regarding providing time off for employees to go to their children’s school. There are two laws in California relating to time off for school-related issues:

1. School Activities leave applies only to employers with 25 or more employees.
2. School Appearance leave applies to all employers, regardless of size.

The School Activities leave applies to employees who are the parents, guardians or custodial grandparents of children in kindergarten through grade 12, or of children in a licensed child day care facility.

Eligible employees may take time off to participate in school activities. The time must not exceed 40 hours per year, nor 8 hours in a calendar month. The employee must give reasonable prior notice of the planned absence and must provide documentation of participation.

The School Appearance Leave requirement provides that employees and who give reasonable advance notice to their supervisor will be granted time off without pay to:

• Appear at their child’s school or child care provider when the parent is required to do so by the school or child care provider, or up to 40 hours per year to visit the school or child care provider of their child(ren). An employee will be granted a maximum of eight (8) hours per month of time off under this policy.

• Under this provision, an employer cannot in any way discriminate against an employee who takes time off to appear at school in conjunction with a child’s or ward’s suspension from a class or school.

As a result, you should not stop your employee from leaving work to go to her child’s school, nor could you take disciplinary action against the employee for taking the time off.

The law does not require you to pay the employee for the time away from work, so on the day that the employee leaves early to go to her son’s school, you need to pay her only for the actual time they spent in the office working.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

eqHRSolutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

New California Parental Leave Act Affects Small Employers

New Parental Leave Act - Effective January 1, 2018

Governor Jerry Brown just signed into law the New Parent Leave Act. The bill will require that California small businesses (20 to 49 employees) offer workers up to 12 weeks of unpaid, job-protected family leave to bond with a new baby or child.

The eligibility for this leave is like the current California Family Rights Act (CFRA) provisions which offers the same parental leave protections to new parents who work for an employer with 50 or more employees within a 75-mile radius:

• The employee has worked for the employer for at least 12 months.
• The employee has at least 1,250 hours of service during the previous 12-month period.
• The employee works at a worksite that employs at least 20 employees within a 75-mile radius.

Further, the law states that an employer must adhere to the following guidelines:

• The employer would be prohibited from refusing an eligible employee protected family leave.
• The employer would be prohibited from refusing to maintain and pay for coverage under an eligible employee's group health plan if the employee takes leave.
• The bill would also authorize, but not require, an employer to grant simultaneous leave to two employees for the same birth, adoption, or foster care placement.
• The employer would be prohibited from refusing to hire, discharge, fine, suspend, expel, or discriminate against an employee for exercising the right to parental leave provided by the bill, or giving information or testimony as to his or her own parental leave, or another individual's parental leave, in an inquiry or proceeding.

The law goes into effect January 1, 2018. Employers should ensure they update their Labor postings and Employee Handbooks to comply with the new law.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.

eqHRSolutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.