California HR Professionals - 2019 To Dos

As the new year begins it’s an excellent time to look ahead and prepare yourself for the year ahead. Below is a list of to-dos to get you ready for the new year:

• Devise a plan to ensure that all supervisors receive 2 hours and all non-supervisors receive 1 hour of anti-harassment training
• Review all settlement and confidentiality agreements to ensure compliant with new legislation limiting prohibitions of disclosing information
• Ensure that policies address all types of harassment claims against non-employees
• Review all independent contractors to ensure compliant with the ABC test
• Add policy to Handbook prohibiting off the clock work
• Add policy to Handbook prohibit recording conversations, phone calls, images, or Company meetings with any recording device, or capturing videos or images using cellular telephones, cameras, and other similar devices without prior approval
• Review compensation to ensure new California minimum wage is being paid (note: this is CA, other local ordinances may apply)

Category	Over 25 Employees	Under 25 Employees
Hourly/non-exempt	$12	$11
Salary/exempt	$49,920	$45,760

• Update new hire packets to ensure using the newly issued unemployment insurance and Paid Family Leave pamphlets
• Update employment postings including minimum wage and Workplace Discrimination and Harassment
• Begin compiling information for the Cal/OSHA Work-Related Injuries and Illnesses log. The 300A summary must be posted from February 1 to April 30 in a visible area at each job location
• Remember ACA deadlines:

ACA Requirement	Deadline
1095 forms delivered to employees	March 4 (extended from Jan 31)
1094 Paper filing with IRS	Feb. 28
1094 Electronic filing with IRS	April 1

• Review record retention guidelines and purge/destroy sensitive records
• Move terminated employee records to storage
• Separate I9s for terminated employees to separate binder/folder
• Review job descriptions for accuracy and update
• Ask employees to verify address, beneficiary, W-4 and emergency contact information
• If you provide front loaded paid sick leave on January 1, be sure new balance shows on the first paystub of the year

Lauren Sims is the article’s author and the Director of Human Resources.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 provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

2019 CA New Laws in Response to #MeToo Movement

Impact of the #MeToo movement

The impact of the #MeToo movement can be seen in a wave of new legislation, an increase in EEOC enforcement and an increase in civil cases. The #MeToo movement has also increased Fair Pay Act filings and more scrutiny in enforcement. 

The following are new legislation driven by the #MeToo Movement: 

• SB 224 expands the types of professional and business relationships that can be the basis of a sexual harassment claim. It also expands the investigative scope of the Department of Fair Employment and Housing (DFEH) when enforcing the law. The bill specifically includes investors, elected officials, lobbyists, directors and producers as listed persons who may be liable for sexual harassment. SB 224 also eliminates the requirement that the accuser proves there is an inability by the plaintiff to easily terminate the relationship. 

Individuals who have a professional or businesses relationship with an individual and are not in a direct employment relationship or are a third party much understand that they may face harassment liability. 

• SB 820 prohibits requirements in settlement agreements, entered into after January 1, 2019, that prevent the disclosure of truthful information relating to claims of sexual assault, harassment, or discrimination based on sex, that are filed in a civil or administrative action. 

Employers should review confidentially provisions in settlement agreements to ensure compliance. 

• SB 1300 stipulates that an employer can now be held responsible for the acts of nonemployees in respect to all types of prohibited harassment of employees, applicants, unpaid interns, volunteers and contractors. The legislation also authorizes, though doesn’t require, an employer to provide bystander intervention training to their employees for how to recognize potentially problematic behavior and act when they observe problematic behaviors. SB 1300 also: 

Prohibits an employer from requiring an employee to sign a release of claim or right under FEHA in exchange for a raise, bonus or as a condition of employment. 

Prohibits employers to require employees to sign a nondisparagement agreement or other document that denies the employees’ right to disclose information about unlawful acts in the workplace. 

Stipulates that a single incident of harassment is enough to qualify as severe and pervasive. 

Reinforces prior case law reinforcing the “Stray Remarks Doctrine” that the existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if it is not made directly in the context of an employment decision or uttered by a non-decisionmaker. 

Specifies that harassment cases are rarely appropriate for disposition on summary judgment. 

• SB 1343 expands sexual harassment training requirements. Under this legislation, all employers with at least five employees must provide at least two hours of sexual harassment training and education to all supervisory employees and at least one hour of sexual harassment training to all non-supervisory employees by January 2020 and once every two years thereafter. 

• AB 2770 designates certain types of employer communications regarding sexual harassment as “privileged.” Employers should continue to limit information provided in reference checks of prior employees to avoid defamation claims. 

• AB 3109 voids a provision in a contract or settlement agreement entered into after January 1, 2019 if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. 

Employers must recognize the trend in recent legislation that is in direct response to #MeToo. All settlement and confidentiality agreements should be reviewed as well as policies on reference checks. Most of all, employers should plan now to ensure that they meet the new sexual harassment training requirements that must be met by the end of 2019. 

Lauren Sims is the article’s author and the Director of Human Resources. 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 provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California. 

Federal De Minimis Doctrine - Not in California

In July 2018, the California Supreme Court issued a decision in Troester v. Starbucks that held that Starbucks must pay its employees for minutes spent regularly performing off-the-clock tasks and finding that the federal de minimis doctrine did not apply in this case. 

The federal de minimis doctrine states that an employer does not have to pay an employee for working time that is trivially small. The California Supreme Court decision rules that an employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job are obligated to compensate the employee of that time. In other words, the de minimis doctrine does not apply. 

Examples of work that Troester performed off the clock that Starbucks hadn’t compensated for included: locking the store, setting the alarm system, and walking employees to their cars. Troester was seeking payment for 12 hours and 50 minutes of work over a 17-month periods which amounted to $102.67. The Court stated that this amount “is enough to pay a utility bill, buy a week of groceries or cover a month of bus fare,” which they reason is not de minimis. 

This case reinforces that employers must continue to take proactive steps to deter off the clock work. Written policies should be implemented that make clear the employer does not tolerate off the clock work. Employers should also provide a method for employees to record time worked, pre-shift, post-shift, at home, etc. no matter how trivially. Employers must recognize that trivial work must be compensated, especially if employees are required to perform the work on a regular basis, such as reviewing and certifying their time cards every other week.

Employers should also ensure that if they have a rounding policy on their time keeping system, that the policy is fair to employees and is primarily in their favor. 

Lauren Sims is the article’s author and the Director of Human Resources. 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 provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.