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Webinar Recap: Your Questions about 2019 California Employment Law Answered by Jennifer Shaw

Posted On11/19/2018

ContributorKaila Prins

Last week, Jennifer Shaw of Shaw Law Group joined Nelson for a webinar to discuss upcoming changes in California employment law. Below, we’ve provided her answers to questions that came up during the call.  

Please note that the information provided below is NOT legal advice. The speaker does not have an attorney-client relationship with you, and you should not take ANY action based on the information provided below without consulting the attorney with whom you regularly work. Also, please note that the responses below are not intended in ANY way to be complete. The speaker graciously agreed to provide a few thoughts with respect to each question, and those very brief thoughts are set forth below.  Thanks for understanding!

 Wages and Pay

  1. Suppose an employee answers a phone call after hours, and it lasts 10 minutes. What time are you required to pay for?

You would pay for the actual time worked based on your regular payroll practices (e.g., you pay a minimum of 15 minutes, actual time, etc.), provided the employee is not required to come into the office.

  1. If a nonexempt employee comes in to take care of an emergency order after hours, lives 45 minutes away, and is at the workplace for 45 minutes, is there a wage law that states he needs to be paid a minimum of 2 hours? Or does he only get paid for the time he clocked in and out?

Yes, two hours is the minimum. But in this case, the time he’s driving is not really commute time. So he would be paid for 2 hours and 15 minutes (90 minutes driving and 45 minutes at work).

  1. Can you please speak to how we pay employees if they text regarding work after hours. We have a policy to not do that, unless it is an emergency or if they are going to be late or sick, but what happens if they do it anyway? 

Don’t mess with the money. If they answer a text, you pay them in the smallest increment that you pay anybody for that work, and then you discipline them. What you want to be clear on is that you’re not withholding the money as a disciplinary action.

  1. Can you define “waiting time?” Is it the same thing as “on-call time?”

Sometimes “on-call” time includes “waiting time”: you might have heard the term “engaged to wait.” So, assume my boss tells me, I might need you on Monday, but I won’t know until 11:00 a.m. and you’ve got to be ready to come to work. You’re engaging me to wait from my start time until 11:00 a.m.  when you call me. That’s on-call time that has to be paid. What we mean by waiting time penalties are the 30 days of wages required to be paid by Labor Code section 203 to former employees because they had to wait to get paid. For example, you consider me an exempt employee, and then when I quit, I claim that you misclassified me and I should have been paid by the hour.  If I win, I will receive back pay and waiting time penalties.

  1. Does company phone number need to be listed on paystub?

No. It’s not required by law. I think it’s a good idea if you can do it, because you want to show the court that you’re making this as easy as possible for employees to find you.

  1. When a current or former employee requests payroll records, how long does the employer have to provide that information?

Labor Code section 226 says you have 21 days to do that. All you have to give are the itemized wage statements. Not the schedule, not the punch correction forms, not the requests for a day off. In a litigation, you have to give them everything. But this is pre-litigation.

  1. Can we give a candidate a salary range?

Yes, you can give them a range. The new amendments make that clear.

Independent Contractors and 1099

  1. Can you speak more about “usual course of business” for independent contractor status?

Sure.  The concept is that the contractor is regularly providing similar services to other clients.  So it’s not about the employee who retired and wants to come back a few days a week as a “1099.”  Join us for our upcoming webinar, which will address everything contractor related.  Here is a link to our website:  https://shawlawgroup.com/employment-law-training-calendar/  Our 2019 sessions will be posted by December 1.

  1. Can a bookkeeper be considered a 1099 if they only on occasion do the books like an accountant?

No, not unless they own their own separate business and have a separate taxpayer ID number. They don’t necessarily have to have another employee, but they have to be a business. It can’t just be that they go on maternity leave and do bookkeeping at home for the company and you “1099” them. It doesn’t work that way.

  1. Are there any reasons why a MD cannot be 1099 in CA?

There’s a very big reason: they’re usually being directed how to perform their services and when to report for a shift, for example. What usually happens is that medical practices make the MDs partners instead of independent contractors. They often receive a regular paycheck and distributions throughout the year (so they would receive a W-2 and a K-1).  But I am not a tax expert, so don’t trust me on this one!

  1. Can an IT professional be a 1099?

An individual IT professional very likely cannot be. But you can have an IT company that’s a vendor.

  1. What impact does Dynamex (a California Supreme Court Case that reinterpreted and rejected a test to determine who is an employee and who is a contractor) have on ERs such as Uber, Lyft, etc.?

There’s a term called the “gig economy,” and we have people at Uber and Lyft, for example, who are going around doing our errands, driving us places, that sort of thing. They have been treated as contractors in the past, but recent policies implemented by these companies are making them look more like regular employees. For example, Uber drivers can’t drive more than 12 hours a day. I don’t work for these companies, so I can’t tell you what their thought process is. But they’ve lost some cases, and they’re going to continue to lose some cases.

Layoffs

  1. When you mentioned telling the employee the truth of why they were let go, but only told them because business is slow and then later that week we hired a new employee can that hurt us if they find out?

Yes, particularly if the employee claims that the decision was made for unlawful reasons, like based on a protected characteristic.

  1. Do employers have to give out the 60 day warn notice if covered by a CBA that covers layoffs with different time frame language?

Maybe.  There are very specific requirements under WARN and Cal-WARN.  The answer will depend in part on how your CBA is written.  If it looks like they are covered by one or both of these laws, I usually tell our union clients is to just do the notice.  If the layoff information is already in the handbook, it’s not going to be a surprise to the employees anyway.  At least you’ve dotted your i’s and crossed your t’s with WARN and CALWARN. You won’t end up with that liability, which can be significant.

OSHA

  1. Is the OSHA rule for 250+ employees per location, or company in total?

Total.

  1. Do all employers have to submit the Cal OSHA 300 report or just those 250 employees and over?

It depends on what industry you’re in. www.calosha.ca.gov has good information on this issue.

  1. Was the Cal OSSHA 300A forms due on 12/32/18 for employers with 250 or more employees?

Generally, yes, but there a few industries that are covered even if they have fewer than 250 employees.

Gender Parity, #Metoo, and Lactation

  1. Will SB826 (a new law requiring publicly traded companies to have at least one woman on the board of directors by the end of 2019) apply to non-profits?

No, right now it only applies to publicly-traded companies. When the legislature passed AB1825, requiring EEO training for supervisors, I said, “This is their first step.” And the next thing we’re going to see is that we’re going to need all employees to be trained. So, what did we get this year? All of the employees have to be trained if you have 5 or more employees. Ultimately, that’s what’s going to happen here, if they don’t see employers, non-profit or otherwise, responding appropriately.

  1. For the new portion of AB1825, where all employees need to have harassment training, must it be done in other languages besides English?

What the law says is that if you know that there are employees who can’t understand it, you better do it in another language. It’s not about checking the box. That doesn’t mean you have to have a separate session for every employee who speaks another language. A lot of our clients do a training in English and then have an interpreter there for folks who want to ask specific questions if there’s something they didn’t understand. But if you know that you have a group of employees who don’t speak or aren’t proficient in English, then you’re going to have to offer it in another language, or at least offer a handout in a different language.

  1. How long do we need to allow an employee to breast feed? An employee is still breast feeding after 3 years from birth.

I love this question. The thing that’s so interesting is your perspective. It’s part of the connection for some moms and their kids. The bottom line is: it’s none of our business. If the mom says she’s nursing at 3 years old, mind your own business and let her do her thing.

  1. What if we cannot provide a location for nursing because the location is an old building, and we are a retail store with 5 employees in SF. The back location is storage for shoes and very small.

You have to come up with something, particularly because the rule in SF is so strict.  Here’s link that will help you:  https://sfgov.org/olse/lactation-workplace

Other

  1. We have an employee that was given a title upon hire that is beyond the scope of their actual work. (We’ve designated them as a more senior position than they actually are.)   Thoughts as to how to change their title in a clear and sensitive way?

Ooh.  This one depends on the culture, etc.  I really can’t give a good answer without knowing more about the organization.  That said, if the employee is at will, you can do whatever you want, so long as you are acting in good faith.

  1. We are a manufacturing company, and I instruct the employees and temps that we ask for them to speak English only while on the production floor, for safety, so everyone knows what’s going on. I also add that we have folks from many places and are welcome to speak other languages on breaks, etc., as long as they are not offending anyone. Is this an issue?

There’s a really important case called Garcia vs. Spun-Steak Co., which is a California case. The court said that if you’re requiring English for safety, security, supervision, or morale, you’re probably okay. It’s probably worth getting some legal advice, because the EEOC and the DFEA are hot on this issue. If they come to audit you or someone calls to complain about something else, and they find out that you have a supposed “English-only” rule, they’re going to be intrigued. I wouldn’t call it an “English-only” rule, and I would put it in the safety section of the handbook, but you would want to be strategic about how you do it.

  1. Do employee handbooks need to be available in both English and Spanish?

Only if you have Spanish-speaking employees who don’t have a sufficient command of English.  Remember, the point of the handbook is to make sure the person knows what you expect of them. If you have a contingent of Spanish-speaking employees who may be able to argue that they don’t understand what’s in that English handbook, you’d better invest.  And with the web, it’s easy to do that translation. It’s just not that expensive anymore.

  1. Regarding sponsorship & H1B, as a company, we have made a decision to not sponsor potential employees. We currently ask on our application if they need sponsorship now or in the future. Are we okay asking that?  Is it legal for a company to not provide sponsorship?   

We do not specialize in immigration law.  Sorry.

A well-respected expert in employment law for more than 20 years, Jennifer Shaw is the founder of Shaw Law Group. She has been named by Northern California Super Lawyers Magazine as one of the top attorneys in CA every year since 2009, and she provides practical advice and counsel on a broad range of employment law issues, including wage-hour compliance, reasonable accommodation/leave of absence issues, and hiring/separation issues.
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