Discussion

The California Labor Commissioner’s Office updated its Frequently Asked Questions to clarify some elements of SB 1162, the new pay transparency law. SB 1162 went into effect on January 1, 2023. It requires employers with 15 or more employees to post a pay scale in open job advertisements and all employers to disclose pay ranges upon request and has additional requirements for the Annual Pay Data Report. Employers who were looking for more robust guidance will have to wait. In the interim, we have the below clarifications.

Employee Count. The Labor Commissioner clarified that employers should count employees for the 15-employee threshold as they do for the purposes of 2022 COVID-19 Supplemental Paid Sick Leave and the new minimum wage rates. This means the threshold applies when: 1) an employer reaches 15 employees at any point in a pay period; and 2) at least one employee is currently located in California. All employees, including those located out of state, count for the purpose of reaching the threshold.

Remote Work. The pay scale must be included in the job posting if the position can ever be filled in California whether in-person or remotely.

Pay Scale. The pay scale does not include bonuses, commissions, tips, or other benefits. If the hourly or salary wage is based on a piece rate or commission, then the piece rate or commission range must be included. Links and QR codes cannot be substituted for placing the wage information in the actual posting.

Remedies. Employees can file a claim or civil action for retaliation within one year of the retaliation.

Action Items

1. Review SB 1162 and the additional guidance.
2. Update job postings to comply with requirements.
3. Train appropriate personnel on job posting requirements and pay data reporting.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Discussion

California’s Civil Rights Department (CRD) recently issued draft revisions to the Fair Employment and Housing Act (FEHA) regulations governing the use of criminal history in employment decisions. The updated revisions were made after receipt of public comments. Although the last written comment period ended on December 30, 2022 and the CRD has not yet scheduled the Council’s next meeting, employers should review and consider what changes they will need to make to their background check procedures. The following are key changes being considered.

Prohibition of Consideration Prior to Conditional Offer. An employer cannot consider criminal history prior to making a conditional offer even if the applicant volunteered the information about their criminal history. There is a limited exception if the employer or their agent is required by law to conduct a criminal background check.

Denial of Employment Due to Conviction History. The CRD clarified that the applicant’s possession of a benefit, privilege, or right required in order to perform the job by a licensing, regulatory, or government agency or board, does not demonstrate that the conviction history directly and adversely relates to the duties of job. Additional factors were also added as consideration for the “nature and gravity of the offense or conduct,” “time that has passed since the offense or conduct and/or completion of the sentence,” and “nature of the job held or sought.”

Evidence of Rehabilitation or Mitigating Circumstances. If an applicant voluntarily provides evidence of rehabilitation or mitigating circumstances before or during the initial individualized assessment of whether the criminal history directly and adversely relates to the duties of the job, that evidence must be considered as part of the initial individualized assessment. If after the employer provides notice of a preliminary decision to disqualify, then the applicant can submit such evidence optionally and voluntarily. An employer cannot refuse to accept such additional evidence voluntarily provided by an applicant at any stage of the hiring process.

Action Items

1. Review the proposed regulations here and here.
2. Review job applications, offer letters, background check guidelines, and pre-adverse action notices for potential revisions.
3. Continue to look for updates on the proposed revisions.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Discussion

Although the Federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) protecting healthcare workers was withdrawn, Minnesota OSHA (MNOSHA) adopted the recordkeeping and reporting provisions which were not withdrawn in the ETS.

These standards require employers of healthcare workers or healthcare support service workers of 10 or more to establish and maintain a COVID-19 log to record each instance where an employee is COVID-19 positive regardless of whether the exposure is connected to work. Additionally, employers must report each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality. Each work-related COVID-19 in-patient hospitalization must be reported within 24 hours of the employer learning about the hospitalization. This is also regardless of when the fatality or hospitalization occurred. Employers of healthcare workers and healthcare support service workers should review the current recordkeeping and reporting requirements and update them for compliance.

Action Items

1. Review the recordkeeping and reporting standards here.
2. Review and update current procedures
3. Have appropriate personnel trained on updated requirements.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Discussion

In Buero v. Amazon.com Services, Inc., the Oregon Supreme Court stated that time spent waiting for and undergoing mandatory security screenings on employer premises is not compensable if the screenings are not integral and indispensable parts of an employee’s principal activities or are not a matter of contract, custom, or practice by the employer. Here, a warehouse employee claimed a violation of wage laws due to the time spent undergoing mandatory security screenings. Amazon screened employees at the end of a shift when workers exit the secured area of the warehouse. There were nine screening lanes with five express lanes. To expedite screenings, employees could also choose to store personal items in lockers outside the secure area.

The Court intended its ruling to be consistent with federal law which also requires compensable screenings to be either: 1) an integral and indispensable part of an employee’s principal activities; or 2) compensable as a matter of contract, custom, or practice. The Court also concluded that if the Oregon legislature intended a broad scope for compensable time, it would have done so. Oregon employers should review their preparatory and concluding activities to ensure they are not integral or indispensable to the employees’ principal activities in order to rely on this ruling.

Action Items

1. Review security screening procedures.
2. Update policies or handbooks to define compensable time.
3. Have appropriate personnel trained on updated requirements.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

DOL and IRS Tackle Worker Misclassification

The Department of Labor (DOL) and Internal Revenue Service (IRS) published a Memorandum of Understanding for Employment Tax Referrals establishing a system to share information to assist in the identification of emerging and ongoing employment tax compliance issues related to misclassification of employees and independent contractors. The IRS intends to target business that lack a good-faith basis for worker misclassification which will result in substantial penalties. Employers should review their independent contractor processes and address any misclassification issues to mitigate any tax penalties.

Proposed USCIS Fee Increase

A dramatic increase has been proposed by the U.S. Citizenship and Immigration Services (USCIS) for fees for nonimmigrant visas and the permanent residency process. The proposed fee schedule is due to the fact that USCIS is self-funded and it also funds humanitarian programs. USCIS is accepting comments on the fee changes until March 3. A final regulation is expected this summer.

California: FAST Recovery Act Temporarily On Hold

On December 30, 2022, a temporary restraining order blocked AB 257 or the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act). The Act required the establishment of a Fast Food Council which would set minimum standards for wages, working hours, and working conditions related to health, safety, and welfare of fast food workers at restaurants with at least thirty establishments nationwide. The temporary restraining order is due to a legal challenge attempting to put provisions of AB 257 on the 2024 ballot. Employers should continue to monitor updates on the legal challenge.

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