Not so HR-y, HR.
2020 Legal Update the “be the change HR” Way
It’s that time of year where the laws are a-changing (especially in CA).
Please note this isn’t a full interpretation of the law nor am I an attorney (but I know some really good ones). If you have ANY questions regarding these please reach out to me and I’ll be happy to help!
Here’s the quickest way I can update you all...here...we...go…
FEDERAL - ALL STATES
FLSA Federal Salary Basis Test
Effective 9/2019, there was an update to the salary basis test on a federal level as well. An employee must make at least $35,568.00/year to qualify as exempt (salary). Just like the CA exemptions test, this isn’t the only test that would qualify someone as salary exempt, there is the professional, administrative and executive exemption tests that need to be passed as well.
UNIONS & the NLRB (National Labor Relations Board)
Public opinion of unions is up according to the Gallup poll… it’s at 64%. That’s an all-time high. What does that mean? Pay attention if you think you’ll be unionized.
Handbook and policy DON’Ts (NLRB rulings that allow “protected concerted activity”):
- Prevent employees from discussing wages
- Include “wages” in the confidential info section
- Prohibit disparagement of the employer
- Regulate the use of the employer’s name (rather than logo)
Minimum Wage Goes Up
Arizona’s minimum wage increases to $12.00 an hour, except in Flagstaff, where it increases to $13.00 per hour.
Minimum Wage Goes Up
Colorado = $12.00 on January 1, 2020
Tipped employee’s min direct cash wage = $8.98
Denver = $12.85
Minimum Wage Goes UP!
$13.00 for employers with 26 employees and up
$12.00 for employers with 25 employees or less
BUT...you may have a city minimum wage that is even higher. If you have employees who work in these cities at least two hours per week, they need to be paid that cities minimum wage (San Francisco is only 56 hours PER YEAR).
Also, be aware of wage compression issues (minimum wage goes up but everyone else doesn’t get a wage increase).
White-Collar Exemption Salary Test
This is the first test to qualify someone as “exempt” (pay salary and not pay OT or give breaks...sorry exempt people).
Your exempt salaried employees must make above this amount to pass the first salary basis test:
$54,080.00 for 26 employees and up
$49,920.00 for 25 employees or less
Remember there is the executive, administrative and professional exemptions test that comes next.
If they make less and/or do not pass the exemptions test they must be nonexempt, paid hourly, given breaks and paid OT.
If they show up, they need consent or a warrant to enter your workplace.
They can cite violations that are “in plain view” even without a warrant.
If they do have a warrant they will do a walkthrough, collect evidence, sample items, and possibly ask for your Injury and Illness Prevention Program. Be ready for this.
If you don’t have a written policy you need one, and if you do they need to be updated. The policy must include:
- A statement about an employee’s right to request lactation accommodation
- The process on how to request the accommodation
- Explanation of the employer’s obligation to respond to an employee’s request for accommodation
- A statement about the employee’s right to a complaint with the Labor Commissioner
- This policy needs to be distributed at the time of hire
Forced Arbitration Agreements
Employers are prohibited from requiring employees to sign new mandatory arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act (FEHA) or California Labor Code.
The Crown Act
CROWN = Create a Respectful and Open Workplace for Natural Hair Act
This act addresses unfair grooming policies that have a disparate impact on Black women, men, and children.
It also expands the definition of race under FEHA to include, “traits historically associated with race including but not limited to “hair texture; and protected hairstyles, which include hairstyles such as braids, locks, and twists.”
CA is the 1st state to protect employees from racial discrimination based on hairstyles.
A similar law has been passed in NY and soon-to-be passed in NJ.
Make sure your grooming policies do not violate this.
De Minimis Update
Long story short every single little tiny minute a nonexempt (hourly) employee works you MUST record that time and pay them. If it takes a long time to walk from the entrance of the building to the timeclock… or if you have only one timeclock and people are standing in line…. or employees return a few emails at night from home… you gotta pay them. ALL that time must be recorded. Also, be careful if you round time.
CA Equal Pay Act
This isn’t new but let’s review this.
In short, it’s equal pay for equal work. We must not pay employees a lower rate than another employee of the opposite sex or different race or ethnicity for substantially similar work, skill, effort and responsibility and performed under similar work conditions.
Of course, there are exceptions like if you have a seniority or merit system, if you have a system that measures quantity or quality of production, or if you have a bonafide factor other than sex like education, training, certifications or experience.
Also, employers cannot seek salary info including benefits orally, in writing, personally or through an agent. They cannot ask about salary expectations and they can be required to provide the pay scale for the role (after the initial interview). They cannot base pay on past salary paid.
Also, employers cannot prohibit employees from talking about their pay and/or benefits.
Make sure you review your workforce to ensure they’re paid equally under the law (and against the market) and if they’re not, strategize on how to make sure that happens.
Reporting Time Pay
CA employers must pay “reporting time pay” to employees who are required to call in two hours in advance of their shift. Of course, there are broader terms like if you have an employee who reports to work and is given less than half the employee’s usual or scheduled day’s work you have to pay them Reporting Time Pay. The pay goes like this...it’s no less than 2 hours or more than four hours if scheduled over two hours.
Hours of Reporting
Scheduled Hours - 10 / 9 / 8 / 7 / 6 / 5 / 4 / 3 / 2 / 1
Reporting Time Pay - 4 / 4 / 4 / 3.5 / 3 / 2.5 / 2 / 2 / 2 / 0
If you have one more than a year old you’ll need to update them. I feel like every year something comes out where you need to update them. The most recent update is that you cannot force an employee to sign one, but that’s only the tip of the iceberg as far as changes go and I’m only talking about 2020. So without going into all the changes and labor codes and things that make us go cross eyed...just make sure you have an attorney update yours or send you a new one.
Yeah. AB5. It seems like a bad word these days. I’m sure you already heard about this one (I hope).
In short, there is a new law effective 1/1/2020. Employers must prove all of the following three for a worker to be an independent contractor...it’s the ABC or “three-prong” test:
- The work must be free from control and direction of the company in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
- The worker performs work that is outside of the usual course of the company’s business; and
- The worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.
There are exemptions to this.
There is also a business-to-business requirement.
I shared an article from my good friend and attorney, Lee Goldberg last month. For the full article go here. https://www.linkedin.com/pulse/life-after-ab-5-chicken-little-sky-falling-lee-goldberg/
And for Fisher Phillips article on this (for more reading) you can view it here.
In short, I recommend you have your independent contractors reviewed so that each and every one is evaluated to ensure they are classified properly.
Specifically Duluth and employers with five or more employees. Sick pay needs to be offered at the rate of 1 hour for every 50 hours worked or 40 front loaded.
This kinda surprises me since Nevada is fairly conservative with its laws but...effective January 1, 2020, all private employers with 50 or more employees in Nevada will have to provide employees with up to 40 hours of paid leave per benefit year.
Minimum Wage Goes Up
Bernalillo County: $9.20
Las Cruces: $10.25
Santa Fe: $9.00
Santa Fe County: Adjusted for Inflation / To Be Determined (March 1, 2020)
This isn’t a new law BUT the Virginia Taskforce released the following recommendations on how to classify 1099s properly:
- Formally adopt and continue applying the IRS test for employment status and assess greater penalties to dissuade worker misclassification.
- Eliminate a good faith defense to penalties. According to the Taskforce, penalties should not be reduced or eliminated when an employer received advice and counsel on its business model.
- Create a private cause of action that permits misclassified workers to sue for wages, taxes, lost benefits, and attorneys’ fees.
- Provide whistleblower protection to those reporting suspected misclassification.
- Make misclassification a sanctionable offence for Board of Contractors-licensed firms.
- Make businesses that have misclassified workers ineligible to bid on public projects.
- Develop uniform investigative and enforcement procedures for agencies and the Taskforce to utilize.
- Identify a lead agency to oversee the inter-agency enforcement effort to deter misclassification.
- Provide funding to educate and inform the public, employers, and employees on worker misclassification.
- Allocate funds to promote investigations, increase inter-agency sharing, and hire staff to support these efforts.
- Maintain the Taskforce to monitor and advise on these efforts.
1099s are a hot topic, right? I urge you to really take a closer look at those types of workers to make sure they are classified properly.
In summation… there’s a lot of changes on the very-soon horizon but of course there is… this happens all the time. Don’t fret though… you’ve got resources like me to help you out. Please never hesitate to contact me. I’m here to help!