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Deadline for OSHA Electronic Filing is Finally Set – July 1, 2018

On July 1, 2018, certain California employers will be required to electronically file the OSHA Form 300A for 2017.  OSHA first announced the electronic filing requirement in May 2016 but since the announcement the agency has set, delayed, and re-set the deadline for enforcement.  The delay is over – covered employers have until July 1, 2018 to electronically submit the 2017 Form 300A.

Is Your Company a Covered Employer?

Employers who employ 250 or more employees and employers in certain industries with “historically high rates of occupational injuries and illnesses” are subject to the July 1st deadline.  The list of such industries can be found here. Our advice is to carefully review the list as some of the industries listed might surprise you (e.g., “specialty food stores”, “museums”, “services to buildings and dwellings”).

Filing Electronically

OSHA has provided a secure website that offers three options for data submission.

  1. Manually enter data into a web form
  2. Upload a CSV file to process single or multiple establishments at the same time
  3. Users of automated record keeping systems will have the ability to transmit data electronically via an API (application programming interface).

OSHA has provided resources for those organizations needing help with the filing.  Those resources can be found here.

Remember – the deadline is July 1, 2018.  Don’t delay!

 

 

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Are You Ready? California is Conducting Random Harassment Surveys

On April 11, 2018, the California Department of Fair Employment and Housing (DFEH) announced that the agency will begin conducting random phone surveys to determine what, if anything, employers are doing to prevent harassment in the workplace.

What Questions Will They Ask?

The California Chamber of Commerce reported this week that the survey includes questions about:

  • Employers’ anti-discrimination, sexual harassment and general anti-harassment policies;
  • Employer-sponsored training on harassment and diversity issues;
  • Recruiting programs for women and minorities; and
  • Harassment complaint procedures.

Purpose of the Survey

According to the DFEH,  the purpose of the survey is purely to gather information. Company names will not be reported in the survey results.

“Knowing more about California employers’ harassment and diversity initiatives is key to the Department’s ongoing work to prevent workplace harassment and discrimination,” said DFEH Director Kevin Kish. “We expect the results of the survey to provide important insights for policy makers and the public alike.”

What To Do If Your Company Gets a Call

COOPERATE and PREPARE!  Review the list of topics covered in the survey to make sure you have the information ready to report.  If you hesitate or provide delayed responses it may appear that your company is ill-prepared to handle sexual harassment complaints and diversity issues in the workforce.  You do not want to leave the DFEH with the impression that your company is failing to take the necessary steps to prevent workplace harassment.

Contact CoreHR for more information on anti-harassment policies or and anti-harassment training for managers and employees.  We can help.

California Supreme Court – New Overtime Calculation

This month the California Supreme Court decided the case of Alvarado v. Dart Container Corporation of Cal., S232607 (March 5, 2018).  At issue in the Alvarado case was whether the employer correctly calculated the overtime rate for employees who had received a flat sum bonus.  The flat sum bonus was given to Dart Container employees who worked the weekend shift to encourage employees to take the less desirable shift.

Basic Overtime Rule

The Court recognized the established principal of calculating the necessary overtime rate by using the employee’s weighted average.  California law requires overtime to be based on the employee’s “regular rate of pay.”  Specifically, an employer must pay an employee at the rate of 1.5 times the employee’s “regular rate of pay” for all hours worked in excess of 8 hours a day.  The regular rate of pay adjusts the employee’s normal hourly rate to include additional compensation the employee has earned – such as non-discretionary bonuses.

Pre-Alvarado Determination

California employers have traditionally followed the Division of Labor Standards Enforcement’s standards in calculating the “regular rate of pay” for flat sum bonuses. Generally, this would permit an employer to calculate an employee’s “regular rate of pay” by dividing the employee’s total compensation for the week (not including any overtime premiums, which is what the “regular rate of pay” would impact) by that employee’s total hours worked for that same week.

New Calculation for Flat Sum Bonuses

California now requires an employer to calculate a non-exempt employee’s additional overtime by dividing the amount of the flat sum bonus by the actual number of non-overtime hours worked by the employee, then multiplying that result by 1.5 (to determine a per hour value) and then multiply that result by the number of overtime hours worked (to determine total overtime wages owed). This additional overtime is then added to the overtime compensation attributable to the employee’s hourly wages (calculated by multiplying the employee’s normal hourly rate by 1.5 and then by the number of overtime hours). 

If an employee earns $12/hour, works 24 regular hours, 1 overtime hour, and earns a $200 flat sum bonus in one workweek, then you would calculate as follows:

($200 bonus) / 24 actual non-overtime hours worked = $8.33
Overtime from Bonus = $8.33 x 1.5 x 1 overtime hour worked = $12.50
Overtime from Hourly Wages = $12 (hourly rate) x 1.5 x 1 overtime hour worked = $18
Total Overtime = $30.50
Total Compensation
$288 regular wages (24 hours x $12)
$30.50 overtime wages
$200 bonus
$518.50 total pay

New rule only applies to flat sum bonuses

The definition of “flat sum bonus” is key to understanding the Court’s decision and whether or not it impacts your business.

What is a flat sum bonus?

The Court’s ruling is limited to flat sum bonuses.  A flat sum bonus is additional compensation that does not change depending on the number of hours worked by an employee, the profit/loss of the company, employee performance, or any other variable factors.  Remember, the flat sum bonus at issue in Alvarado was a flat sum provided to any employee who was willing to work the weekend shift.

In so ruling, the Court reasoned that because the form of compensation involved a fixed-value amount that had no direct relevance to the actual number of hours worked, the amount could not be seen as compensation for any overtime hours worked. The Court then held that, as a result, the per-hour overtime value of the bonus could only be calculated by dividing the bonus by the actual number of non-overtime hours worked by the employee, as opposed to the total number of total hours worked.

What Does This Mean for Your Business?
1. If you give flat sum bonuses you will need to modify the way that you calculate the employee’s regular rate of pay when the employee works overtime.

2. If you DO NOT give flat sum bonuses, then the ruling does not impact how you calculate regular rate of pay.

3. If you have questions about whether  your bonus structure consists of any flat sum bonuses, call us at 559-825-6629 or email us at info@corehrteam.com.

 

IRS Releases 2018 W-4

The IRS has released the 2018 W-4 form.  Beginning immediately, use this form when on-boarding new employees and for current employees needing to make changes to their taxes.

You do not need to have employees who have already completed their W-4 complete the new form.

If you have questions, give us a call at 559-825-6629.

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Are you prepared for an I-9 Audit? Labor Commissioner Issues New Form for CA Employers

California businesses have become the target of immigration raids and I-9 audits.  It is difficult for businesses to know just what they should do in the event that ICE, Homeland Security, or another governmental agency demands entrance to their business and/or issues an I-9 inspection notice.

California Law

California’s Immigrant Worker Protection Act (AB 450) provides California workers with protection from immigration enforcement while on the job.  This law became effective January 1, 2018 and applies to all California employers.

What does the law require?

  1.  The law prohibits employers from allowing immigration enforcement agents to enter any nonpublic areas of a work place, absent a judicial warrant, or access, review, or obtain employee records, without a subpoena or court order.

Typically, enforcement agencies will have the required documentation; if, however, the officers do not have the correct paperwork, you will need to make a decision as to what action to take.  Under California law you are required to refuse to allow the agents entry until they produce the proper documentation.  The business will have to decide whether to accept the penalty issued under California law or face the potential repercussion of defying a federal agent.

2.  The law mandates that an employer post a notice to employees in the workplace within 72 hours of receiving a “Notice of Inspection” from a government agency.

This week the California Labor Commissioner released the model notice form that all California employers should use in the event they receive an inspection notice.  The notice is available in both English and Spanish.

3. Once the inspection is over an employer must notify each “affected employee” within 72 hours of receiving the inspection results. Each affected employee must receive a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection.

An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies.  This notice must be specific to each affected employee.

Employers Should Do an Internal Audit – NOW!

Be prepared – do an internal I-9 audit as soon as possible.  Mistakes caught during the internal audit can be remedied, as long as the employer is aware of the rules surrounding lawful I-9 corrections.

Call us at 559-825-6629 or email CoreHR today for assistance with conducting an I-9 audit. 

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California Jury Awards Employee $4.5 Million in Disability Discrimination Claim

Do you know:

  • California employers are required to speak with a disabled employee to determine whether or not that employee can work with or without a reasonable accommodation (known as the “interactive process”)?
  • It is unlawful to terminate an employee because they have exhausted their 12 weeks of medical leave?
  • That making a mistake in how you handle a disabled employee can cost you $4.5 million?

The Facts of the Case (e.g., what not to do)

A California jury recently awarded an employee $4.5 million for failing to accommodate her disability, failing to “engage in the interactive process”, and for retaliating against her for taking her protected medical leave.

The employee began working for the Asian American Drug Abuse Program, Inc. (AADAP) in 2011. During the New Year holiday of 2015, the employee broke her humerus and subsequently began medical leave.  Not long after, the employee was diagnosed with major depression and needed more than the 12 weeks leave protected by the California Family Rights Act (CFRA).  The need for the additional leave was certified by her doctor.  Nonetheless, when her 12 weeks of leave were up, AADAP terminated her for “failing to return from her medical leave.”

The employee filed a lawsuit against her employer alleging that AADAP’s actions violated the CFRA and the Fair Employment and Housing Act (FEHA)  (California’s anti-discrimination law). The employee argued, and the jury concurred, that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.

Below is a breakdown of the employee’s claims and the unlawful actions of the employer:

  1. Failure to Accommodate: The FEHA requires employers to reasonably accommodate qualified disabled employees.  An extended leave is recognized as a reasonable accommodation.  AADAP, however, failed to make any effort to determine whether or not there was an accommodation for the employee that would have allowed her to continue her employment.  The jury determined that she would have been able to perform the essential duties of her job (or a similar vacant position) with reasonable accommodations.
  2. Failure to Engage in the Interactive Process:  The FEHA also requires that an employer “engage in the interactive process” with an employee in order to determine whether or not there is a reasonable accommodation available.  The jury also found that AADAP, despite its knowledge of the employee’s circumstances, did not take reasonable steps to communicate with her about her disability, her leave, or potential accommodations to facilitate her return.
  3. Retaliation for Taking Medical Leave: AADAP provided the employee with a letter stating that she was terminated for “failure to return from her medical leave”.  At the conclusion of her 12 weeks of leave the employee provided AADAP with a doctor’s note indicating that the employee required additional time off to treat her depression.  Despite the note, and despite the employer’s obligation to engage in the interactive process, AADAP automatically terminated the employee.

What Should Employers Do?

Learn from its mistake, and take these steps:

Create a paper trail. As soon as an employee requests a leave or an accommodation, document  the request and discuss the request with a human resources expert or an employment attorney. Next, send correspondence to the employee acknowledging receipt of the request and outline the next steps.

Follow-up. It’s not enough to say that you received the request. Investigate. Ask questions. Request additional information about the impairment—within reason—to find out what the employee’s doctor says he/she can (or cannot) do.  Ensure that the doctor has an updated job description outlining the employee’s job duties and physical requirements.

Talk it out.  Speak with the employee, and get his/her feedback and suggestions on how you can accommodate the employee’s needs while also ensuring that that the employee is able to perform the essential functions of the job. Involve the employee’s doctor and do not hesitate to ask questions and get clarification on the employee’s limitations, if any. Keep an open mind about what accommodations may work (and don’t forget that California courts recognize leave as a reasonable accommodation).

Create (another) paper trail. After you confer with the employee, send another correspondence outlining what you discussed, whether you reached a viable solution, and what action steps you both have to take going forward.  Make sure that you have made every effort to reach a viable resolution before determining that there is no accommodation. Consult with a human resources expert or employment attorney prior to making the final determination.

In summary, the duty of accommodation is continuing; it doesn’t stop after the first request or the first meeting. Each employee and her circumstances will present unique sets of problems that require constant vigilance, attention, and awareness on the employer’s behalf.

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New Mileage Reimbursement Rate for 2018

The Internal Revenue Service announced the mileage reimbursement rate for 2018 will be 54.5 cents per mile.

Why should you care about the new rate?

California Labor Code, Section 2802 states: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties….”  If employees use their personal vehicles for business, you must indemnify them for the use of their vehicle.   Reimbursing an employee for use of their personal vehicle means more than simply reimbursing the employee for gas;  employers must indemnify the employee for the “use” of their vehicle (e.g., loss of value or wear and tear due to use).

California state agencies, including the Department of Labor Standards Enforcement (“DLSE”), consider the IRS rate to be the most reasonable reimbursement rate. Employers may reimburse for mileage expenses at less than the IRS rate as long as the payment reimburses the employee for all actual expenses incurred by the employee in the operation of the vehicle for business use.

Failure to properly reimburse employees can result in litigation, including class actions. Why spend your time and energy trying to calculate the “actual expenses” and risk failing to wholly indemnify?  Use the IRS rate.

 

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Do Not Ask About Salary History! – It’s Illegal Beginning January 1, 2018

Beginning January 1, 2018 it is unlawful for an employer to ask applicants about the applicant’s salary history.

The New Law   
Effective January 2018:
“(a) An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
(b) An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment.
(c) An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”
There is an exception to the above if your business is required to ask an applicant about their salary history per a federal or state contract.

What Does The Change Mean for My Business?

You should:

  1. Review your employment application to ensure that it does not contain a request for information regarding salary history (e.g.,”prior salary” or “last rate of pay”).
  2. Make sure that managers and other staff involved in the hiring process know of the new law.

Can I Ask Anything About Salary?

Yes!  You can ask applicants about salary expectations or their desired rate of pay.

Questions? Email us at info@corehrteam.com.

 

 

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NEW LAW! Employees of small employers entitled to maternity/paternity leave

Employers with 20+ Employees Must Provide Maternity/Paternity Leave

Beginning January 1, 2018, employers with 20 or more employees will need to provide up to 12 weeks of maternity/paternity leave to eligible employees.  Eligible employees must have worked for the same employer for at least 12 months and worked 1250 hours during the past 12 months.  The employee must perform work at a site where there is at least 20 employees within a 75 mile radius.

Employer Requirements

  1. The employee must be returned to their previous position upon returning from their leave.
  2. Employers must maintain the employee’s health insurance during the leave.
  3. The leave is unpaid.

Failure to provide the leave will be considered an unlawful employment practice and could result in costly litigation.

What do I need to do to prepare?

Employers impacted by this law will need to make sure that they are aware of how to handle a request for baby bonding leave.   This will undoubtedly mean training your staff, providing required forms, and understanding how to manage and track leaves of absence.