HRxpress, Inc. 219-A West Carrillo St. - Santa Barbara, CA 93101 - Tel (805) 965-7733 - E-mail info@hrxpress.net - www.hrxpress.net LEGAL FUNDAMENTALS BASED ON CALIFORNIA COMPANY S SIZE When the federal and state laws conflict, generally speaking, the law that is most restrictive to the employer and most generous to the employee must be followed. Most of the laws apply to both full-time and part-time employees. 1 OR MORE EMPLOYEES Federal and State Wage and Hour Laws 2012 CA minimum wage is $8.00/hr Federal minimum wage is $7.25/hr San Francisco minimum wage $9.92/hr San Jose minimum wage $10.00/hr State & Federal Equal Pay & Lilly Ledbetter Act 2009 Accommodating Nursing Mothers You must post prevailing minimum wage orders (federal & state) In California, you must post the Wage Order that applies to your business and follow its guidelines. You must also comply with the 8-hour workday overtime rules. Equal pay for equal work; you can t discriminate because of gender. In 2009, time period for filing claims expanded in cases filed after 5/28/07. Employers are required to provide reasonable accommodations enough break time and privacy for employees who wish to express breast milk while at work. CA State Unemployment Insurance Employees may be eligible unless their wages are less than $100 per quarter. Stimulus payments (extra $25) may apply in 2009. Workers Compensation Insurance CA State Disability Insurance Federal Immigration Employment Verification (Form I-9) Executive Order 12989 Child Labor (both state and federal laws apply) Smoking Federal & State Posting and Notice Requirements Insurance is required, as well as postings and notices to employees. Workers injured after 1/1/08 will be eligible for 104 weeks of benefits within a five year period. Mandatory for most private employers; funded by employees out of their paychecks. For non-job-related illnesses or injuries. Has a 7- day waiting period. I-9 forms must be completed for every employee (hired after 11/6/86) within 3 days of hire. Use most current I-9 form. Federal contractors must use E-Verify system for new employees. You must acquire a work permit prior to hiring a minor. Schools issue the permits. California prohibits smoking in enclosed spaces at the workplace in most cases. About 19 posters are required in California, more in special situations. Be sure to post applicable Wage Order. Rev. 03/27/2013 1 ww.hrxpress.net
Human Trafficking Time Off (both state and federal laws apply) Kin Care (California law) Right to Privacy HIPAA Occupational Health and Safety (OSHA) (Both state and federal laws apply) California Chemical Hazards Right to Know California Illness & Injury Prevention Program Ergonomics California Corporate Liability Act, 1989 Be a Manager, Go to Jail Omnibus Transportation Employee Testing Act (OTETA) Poster regarding human trafficking must be posted by certain industries, including hospitals, restaurants that sell alcohol, bus stations, airports and massage parlors. You must provide time off (unpaid) for jury duty, witness duty; attending school meeting regarding suspended child; emergency duty as volunteer firefighter, reserve officer, or emergency rescue volunteer; military leave; victims of sexual assault; victims of domestic violence to obtain restraining orders; victims of felonies or related to victim. If you offer sick leave, you must allow employees to use up to half their annual accrual to care for a sick child, parent or spouse. Also includes (registered) domestic partner and child of domestic partner. Regulates such employment issues as drug testing, personnel files, polygraph testing and search of employees property, e-mail, medical records, personal data, etc. If you offer health insurance, you must issue certificates of coverage to employees and dependents who lose coverage. You must also protect the privacy of all medical and medical-related employee information. OSHA can visit employers when they deem necessary and/or at invitation of a union or employee. Employees who request inspection need not be identified to the employer. If you have 10+ employees you may also be required to maintain OSHA Log 300-A and post it each February. Some industries are exempt. Employees have the right to know risks associated with certain hazardous substances to which they may be exposed in the workplace. Employers are required to determine the risk, notify and provide MSDS information, develop a written HazMat program, post OSHA posters, and train employees. Every CA employer must develop, maintain, and use a written Injury & Illness Prevention Plan which should include an Emergency Action Plan. All employees must be alerted to it and trained to understand potential dangers in the workplace. You must try to prevent and to deal with work-related repetitive motion injuries (RMIs). If two employees doing the same work report the same RMI, you must take action to correct the situation and to mitigate future occurrences. Law imposes criminal penalties on corporations and individual managers if they have actual knowledge of a serious and concealed dangerous condition in the workplace and fail to immediately correct it or report it to OSHA. Applies only to employees in the transportation industry. Employers must implement alcohol and controlled substances testing programs, maintain related records, and provide drug and alcohol education to transportation employees. Rev. 03/27/2013 2 ww.hrxpress.net
California Paid Family Leave Note: This is a wage-replacement program for those already on leave. It is not a leave program per se. Tracking Devices Felony Victim Leave Victims of Domestic Violence or Sexual Assault CA Labor Code 206.5 Amendment regarding hours worked Whistleblower Protection Additional protections in health care facilities for reporting quality problems. Protections extend to any covered employee in the chain of manufacturing, distributing, selling or private labeling of toys and children s products. Health Insurance Premium Payment (HIPP) Program Domestic Partner Rights Same-Sex Marriage Fair and Accurate Credit Transactions Act (FACTA) California Code of Regulations Title 8 Outdoor Work Protection PFL is a state-sponsored insurance program within the SDI program. It provides employees with partial wage replacement for up to six weeks in any 12-month period for birth of employee s child; placement of child in connection with adoption or foster care; serious health condition of employee s child, spouse, parent or domestic partner. Has a 7-day waiting period. You can t implant tracking devices in your employees (yes, this is actually a California law). Employees who are victims of a felony or related to a victim may take time off to attend related judicial proceedings. The felonies included in this protected leave are for violent crimes and crimes of theft or embezzlement. Employees may use accrued vacation, sick leave or unpaid time off. You may not discipline, terminate, or discriminate against an employee who takes qualified time off under this law. An employer may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child. May not require an employee to execute a statement of hours worked during a pay period that the employer knows to be false. Employees can file civil actions for virtually any violation of the CA Labor Code, whether or not violation is substantial, Civil actions may brought on behalf of the employee and other current and former employees. It also prohibits an employer from retaliating against an employee for engaging in whistle-blowing activity, and it adds an additional civil penalty of up to $10,000 for any violations. Health care facilities cannot discriminate or retaliate against a patient or employee who has complained to an agency responsible for health care oversight. A CA program requiring employers to provide terminating employees with a notice advising them of the possible availability of continued health insurance coverage provided by the state. Prohibits insurance providers to issue insurance policies or plans that treat registered domestic partners and married spouses differently, however the partner s benefits may be taxed. Same-sex partners married outside of California must be afforded the same rights, benefits and obligations as other married couples in CA. Check the status of these laws in your state, as they are in flux; special tax and federal rules may apply. If you obtain consumer information about an applicant or employee it must be disposed of in a way that prevents its reconstruction (includes paper and electronic records). You must provide shade and water to employees who work outdoors to prevent heat illness; must also train supervisors to deal with heat and heat illness. Rev. 03/27/2013 3 ww.hrxpress.net
California Civil Code - Limits on use of Social Security Numbers California Vehicle Code Cell Phones Military Duty Leave (USERRA) Military and Veterans Code California Labor Code Business Expense Reimbursement Penalties for assisting evasion of child support Medical Clinic ruling by CA Supreme Court CA SB 940 Payment of Temp Employees San Francisco Paid Sick Leave Electronic Discovery Act (CA) Medical Services and First Aid Posting Retirement Plan Information Children's Health Insurance Program Reauthorization Act CHIP NOTICE HEART Act The Immigration and Nationality Act (INA) May not post or display employee SSNs. Typically cannot mail SSN or require it be used as ID. Employers are required to include no more than the last four digits of an employee's SSN or an existing employee identification number on employee checks, drafts or vouchers, pay stubs. Bans use of hand-held cell phones while driving a motor vehicle, with some exceptions in some work situations. Texting while driving is also banned. If under 18 years old, may not use cell phones even with hands-free device. Returning service-members called to active duty are to be reemployed in the job that they would have attained had they not been absent for military service. Basic requirements apply. Disabilities must be accommodated (disabled veteran may have up to two years to return to job). Employees returning from active duty cannot be terminated except for cause for six months (if gone from 31-180 days) or one year (if gone for more than 180 days). Must reimburse employees for business expensed incurred. Employers may now pay an employee an increased salary or commission to cover business expenses. Lump sum wage increase must be sufficient to actually cover expenses and must be designated on wage statement. Penalty of 3 times the value of the assistance provided up to the total amount of the child support debt if you knowingly assist evasion. Medical clinic physicians may not discriminate against a person based on sexual orientation based on their own religious views. Agencies must typically pay weekly. Employers must pay part-time and full-time employees for sick leave when they must take off to care for their own illness or the illness of a member of their family. The entitlement is one hour of sick leave for every 30 hours worked. A party seeking electronic information may specify the form in which documents are to be produced Employers must make provisions in advance in case an employee becomes serious ill or is seriously injured. Employers sponsoring a retirement plan and who have an intranet accessible by employees must post certain plan and actuarial information on the intranet annually. If you offer health insurance you must give eligible employees annual notice of potential for premiums assistance from state. Imposes specific obligations on 401(k) and 403(b) plans in the event that an employee dies during qualified military service. Agricultural employers who hire temporary non-immigrant workers (H-2A workers) must display a poster describing the rights of U.S. workers under the Act. Rev. 03/27/2013 4 ww.hrxpress.net
Anti-Harassment, Discrimination, Civil Rights (While various laws come into play regarding preventing harassment and discrimination as your organization grows, make it a practice no matter what the size of your organization.) American Recovery and Reinvestment Act ARRA Posting Summary Plan Descriptions (ERISA) Criminal Background Checks Employee Access to Files Written Commission Plans May not harass or discriminate on the basis of actually having or being associated with such protected characteristics as race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sexual orientation or age. Employees required to post the ARRA Whistleblower poster if they are a non-federal employer receiving recovery funds, including state and local governments, contractors, sub-contractors, grantees or professional membership organizations acting on behalf of recovery fund recipients. Employers of covered employee benefit plans are required to distribute and maintain Summary Plan Descriptions (SPDs) to its participants. The SPD outlines the eligibility, schedule of benefits and items that are covered or excluded by the benefit plan that is offered by an employer. Employers cannot automatically deny employment to person with criminal conviction, nor ask applicants to disclose arrests that didn t result in conviction. Must examine on an individual basis to see whether it is relevant to the particular job Current and former employees (or a designated representative) have right to inspect the personnel records that the employer maintains relating to the employee s performance or to any grievance concerning the employee. They may also receive a copy of the file s contents. Employer must develop a form for employees to inspect records and/or get copies. Records must be available within 30 days of request. Employees who are paid on commission must be provided a written contract which sets forth the method by which the commission shall be computed and paid. This new law further requires that the employer provide a signed copy of the commission agreement to the employee and obtain a signed receipt for it. Cal-COBRA Health and/or Disability Coverage for Small Employers (Note: Applies until you have 20 or more employees, then federal COBRA applies first.) Anti-Discrimination Provisions of the Immigration Reform and Control Act (IRCA) 2 OR MORE EMPLOYEES Requires smaller employers to provide COBRA-like coverage for employees not subject to COBRA because they have less than 20 employees. Must provide notice of an employee s qualifying event to insurance carrier within 31 days of event if event would result in loss of coverage under the group plan. During 2009, stimulus money provides a subsidy to the employees cost of premiums. 4 OR MORE EMPLOYEES You are prohibited from discriminating against employees in hiring, terminating, and recruiting due to national origin or citizenship status. 5 OR MORE EMPLOYEES English Only Policy Limitation You may not make any policy which limits or prohibits the use of any language in the workplace unless you are able to show that a language restriction is a matter of business necessity, Rev. 03/27/2013 5 ww.hrxpress.net
California s Fair Employment and Housing Act California s Pregnancy Disability Leave (PDL) Genetic Information Nondiscrimination Act (California) You cannot discriminate on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical conditions, age, marital status or gender. Nor against employees based on actual or perceived sexual orientation or gender. You may not discriminate on the basis of pregnancy, childbirth or related medical conditions. Employee disabled by pregnancy can take up to 4 months of (unpaid) leave if disabled. Employee also has right to return to job in most cases. Health insurance coverage continues for up to 4 months. Starting 1/1/12 CA employers may not discriminate in employment based on genetic information; the federal version of this applies to employers of 15 or more employees OSHA Recordkeeping 10 OR MORE EMPLOYEES Must comply with OSHA s recordkeeping requirements, including Form 300 maintenance and posting of 300-A Summary, unless exempt. Americans with Disabilities Act (ADA) Federal Law Amended (ADAAA) 2009 Mental Disabilities under California s Fair Employment and Housing Act ADA Amendments Act Of 2008 (these amendments broadly interpret the definition of disabled ) 15 OR MORE EMPLOYEES Prohibits discrimination based on disability (physical, mental, real or perceived) with regard to application, hiring, advancement, compensation, training, discharge or other terms, conditions land privileges of employment. Must provide leaves of absence and other accommodations to disabled individuals (unless individual cannot perform essential functions of job with accommodation or if accommodation would create an undue hardship on the company). AIDS & Other Infectious Diseases Title VII of the Civil Rights Act Civil Air Patrol Duty Leave (AB 485) Genetic Information Nondiscrimination Act (GINA) Individuals with, or perceived to have AIDS are considered disabled under CA & Federal employment discrimination laws. You must provide reasonable accommodation and strictly enforce privacy rights. Also applies to all Federal contractors. You may not discriminate on the basis of race, color, religion, sex or national origin. Act amended in 1991 to include the right to jury trial and compensatory and punitive damage awards. Must provide up to 10 days of unpaid leave if called on an emergency operational mission for California Wing of the Civil Air Patrol. Must be employee for at least 90 days immediately preceding the commencement of leave. Employers may not discriminate in employment or health insurance based on genetic information. Rev. 03/27/2013 6 ww.hrxpress.net
Organ/Bone Marrow Donation (CA) Employees entitled to up to 30 days of paid leave in any one-year period for the purpose of donating an organ; required to use up to two weeks of paid sick or vacation leave; does not run concurrently with any federal or state family leave to which you might be entitled. Employees entitled to up to 5 days of paid leave in any one-year period for the purpose of donating bone marrow; required to use up to five days of paid sick or vacation leave; does not run concurrently with any federal or state family leave to which you might be entitled. Benefits, including group health insurance will continue for the duration of the leave. Age Discrimination in employment Act (federal) COBRA (Note: If you have between 2 and 19 employees, see Cal- COBRA on page 3.) 20 OR MORE EMPLOYEES Complemented by California s Fair Employment and Housing Act, the Federal ADEA prohibits employers from discriminating against employees or applicants on the basis of age in all employment actions. Employees 40 and over are in a protected class. Allows insured employees to continue health coverage at their own cost through the employer s group health plan under certain circumstances. Involves somewhat complex notification and election procedures. When federal COBRA expires, Cal-COBRA extends coverage for CA employees an additional 18 months (total of 36 months). During 2009, stimulus money provides a subsidy to the employees cost of premiums. San Francisco Commuter Benefits (effective 1/19/09) San Francisco employers with 20 or more employees (including full-time, part-time, temporary employees, and employees who perform work outside of San Francisco) are required to offer commuter benefits to employees who work an average of at least 10 hours per week in San Francisco. Illiteracy Alcohol and Drug Rehabilitation Family School Partnership Act Military Spouse Leave Displaced Janitor Opportunity Act 25 OR MORE EMPLOYEES Employers must reasonably accommodate and assist employee who reveals a problem of illiteracy and requests assistance in enrolling in an adult literacy education program. You must also make reasonable efforts for protect the privacy of that employee. Employers must reasonable accommodate and assist an employee who wishes to participate in a rehabilitation program. Again, you must safeguard that employee s privacy. Employers must allow employee who is the parent or guardian of a child in licensed day care or K-12 up to 40 hours off per year for to participate in school activities. May limit the employee to no more than eight hours in a calendar month and may require them to use accrued vacation, personal leave or compensatory time. Must allow spouses of military personnel to take up to 10 days of unpaid leave while military member is home on leave. Includes part-time employees working 20 or more hours per week; cannot affect other leave or benefits. Requires janitorial contractors and subcontractors that secure a new building service contract to continue employing the janitors of the former contractor or subcontractor for at least 60 days. Rev. 03/27/2013 7 ww.hrxpress.net
Domestic Violence Recovery Sexual Assault Recovery Employer may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to attend to any of the following: (1) To seek medical attention for injuries caused by domestic violence or sexual assault. (2) To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence or sexual assault. (3) To obtain psychological counseling related to an experience of domestic violence or sexual assault. (4) To participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault, including temporary or permanent relocation. Must file EEO-1 and VETS-100 Reports (federal contractors) Subject to Title VII of the Civil Rights Act of 1964 and amended by the Equal Employment Opportunity Act of 1972. 50 OR MORE EMPLOYEES Applies to federal contractors who are not exempt and have a prime contract or first-tier subcontract of $50,000 or more. Family and medical Leave (FMLA) and California Family Rights Act (CFRA) 50 or more employees within a 75 mile radius Affirmative Action Sexual Harassment Training (AB 1825) Mental Health Parity Act (effective 10/09) Firefighter Leave (CA) Unpaid leaves to a maximum of 12 weeks for employee s own serious illness, or for employee to care for certain seriously ill family members or bond with a newborn child. 26 weeks if family member is injured military. Both State and Federal law have eligibility requirements, posting requirements, health benefit continuation provisions, medical certification provisions and guarantee the employee the right to return to job. FMLA includes unpaid leave for qualifying exigency because employee is the spouse, son, daughter or parent of an individual on active military duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation, or is a veteran of such a contingency operation. Written plans required for certain government contractors. California employers of 50 or more employees, contractors or agents, must provide supervisors located in California with two hours of sexual harassment training every two years; new supervisors w/in 6 months of promotion or hire. If a group health plan covers the treatment of mental illness or drug or alcohol abuse, the treatment limits and financial requirements for these services can be no more restrictive than the predominant treatment limits and financial requirements that the plan applies to medical and surgical benefits or coverage. Employers with 50 or more employees must allow those who are volunteer firefighters to take up to 14 (unpaid) days off per year to undergo training. Cal/WARN Act (Plant Closing/Layoff) 75 OR MORE EMPLOYEES Employers must give 60 days notice before a mass layoff, a relocation, or a termination of operations. 100 OR MORE EMPLOYEES Rev. 03/27/2013 8 ww.hrxpress.net
Must file EEO-1 Reports Title VII of the Civil Rights Act of 1964 and amended by the Equal Employment Opportunity Act of 1972 WARN Act (federal) Applies to private employers. Excludes state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations. Employers must give 60 days notice before a mass layoff, a relocation, or a termination of operations. Must file EEO-1 Reports FEDERAL CONTRACTORS, regardless of number of employees Applies to any contractor who receives a federal government contract or $25,000 or more, or any subcontractor who receives a contract of $25,000 or more from a covered contractor. Must file VETS-100 Reports Employment Eligibility Verification Program Applies to any contractor who receives a federal government contract or $25,000 or more, or any subcontractor who receives a contract of $25,000 or more from a covered contractor. Must use Department of Homeland Security E-Verify system to check I-9 information. HEALTH CARE REFORM Health Care Reform Bill 2010 (PPACA) Entire health insurance landscape will change between 2010 and 2014; check with your broker for updates. Other California legislation of interest: Religious institutions exempt from claims of religious discrimination. Illegal for employers to discipline employees for off-duty legal conduct off the employer s premises. Check with your employment attorney before using a mandatory arbitration policy, and before charging leave to exempt employees when they are absent for partial days or tracking exempt employee hours worked. Definition: At-will employment: An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month. (LC 2922) Note that HRxpress is not a law firm and does not claim to give legal advice. In fact, we urge you to call your employment attorney when you have legal questions. Rev. 03/27/2013 9 ww.hrxpress.net