10 sure fire ways to get sued by your employees …...employee eligibility comparison fmla cfra pdl...

10 Sure Fire Ways to Get Sued by

Your Employees in California

Presented By:Lynda Dickey

Introduction

Copyright © Vantaggio HR, ltd., 2006/2018 2

CA Executive Exemption

AND

AND

AND

AND

Copyright © Vantaggio HR, ltd., 2006/2018

CA Administrative Exemption

AND

OR

OR

AND

AND


CA Professional ExemptionLicensed or certified by State of CA and primarily engaged in the practice of:

* Law * Architecture* Medicine * Engineering* Dentistry * Teaching* Optometry * Accounting

OR Primarily engaged in an occupation commonly recognized as Learned or Artistic profession* (see next slide)

ANDDiscretion & independent judgment

ANDPaid on Salaried Basis of no less than 2 x current minimum wage -$43,680 ($45,760) *licensed physicians and surgeons must be paid at least $79.39

Learned or Artistic Professionhave as his/her primary duty the performance of work that either:

• requires advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or study, as distinguished from a general academic education and from an apprenticeship and from training in the performance of routine mental, manual or physical processes. (“Learned Professional”);

OR• is original and creative in character in a recognized field of artistic

endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination or talent of the individual (“Artistic Professional”);

ANDperform work that is predominately intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time

CA Inside Sales Exemption

Copyrght © Vantaggio HR, ltd., 2006/2018

CA Computer Exemption


When are SALARY Deductions NOT OK

•Safety Violations

•Disciplinary Reasons

– this changed 7/1/15

• Jury Duty, Witness, Military Leave


Exempt/Non-Exempt Resources

https://webapps.dol.gov/elaws/whd/flsa/overtime/jobs.htm

https://webapps.dol.gov/elaws/whd/flsa/screen75.asp

Remember these are federal resources, not CA!


Brinker Case

• Penalty is still due if ER prevents break from being taken• 1st meal period must begin no later than end of 5th hour of work


Brinker Case

14Copyright © Vantaggio HR, ltd., 2006/2018

Where ERs Still Get in Trouble


#4 - The “Regular” Rate of Pay


When Do You Use It?


Blended Overtime


The California Scarlet LetterI

1. that they have committed a serious violation of the law by willfully misclassifying Independent Contractors

2. that they have changed business practices to avoid further violations

3. that any EE who believes to have been misclassified may contact the Labor and Workforce Development Agency (along with contact information)

4. that the notice is being posted pursuant to a state order

5. the signature of an officer of the company


And Now – The ABC Test!• CA Supreme Court - Dynamex Operations West, Inc. v. Superior Court –

4/30/18

• New test for IC status under IWC Wage Orders

• Rejected prior multifactor test from Borello case, 1989

• ABC test increasingly common in other jurisdictions

• Modeled after Massachusett’s IC statue – considered strictest in county


Hiring Entity must Establish all 3 Factors

A

AND

BAND

Cof the same nature as the

work performed for the hiring entity


25

“We don’t want our premiums to go up, so

we’ll pay for the employee to go to the doctor and not report

it.”

“We’re planning on firing him anyway, and

now he’s filed a work comp

claim.”


Work Comp

FMLA/CFRA

ADA


Where ERs get in trouble• Failure to run leaves concurrently• File work comp and forget about FMLA/CFRA• Using DOL FMLA notices in CA• Failure to recognize when ADA kicks in during/after protected leave• Failure to engage in interactive process• Failure to consider leave extension as reasonable accommodation• Terminations during/just after leave


General TermsFamily & Medical Leave Act

(FMLA)California Family Rights Act

(CFRA)NEW REGS 7/1/15

Pregnancy Disability Leave Law (PDL)

New Parent Leave Act (NPLA) – 1/1/18

6 Reasons for Leave: SHC of employee SHC of family member

Spouse, son, daughter, parent

Baby bonding Birth, adoption, foster

care placement Pregnancy disability Military exigency Military caregiver

3 Reasons for Leave: SHC of employee SHC of family member

Spouse, child, parent, registered domestic partner


care placement

Pregnancy disability expressly excluded

Leave for pregnancy, childbirth and/or pregnancy-related medical condition

Includes morning sickness, doctor visits, etc.


care placement

12 or 26 weeks of leave in a designated 12-month period26 weeks for military caregiver leave

12 weeks of leave in a designated 12-month period

For the period of disability up to 4 months

Accommodation required

12 weeks of leave in a designated 12-month period

Benefit continuation Benefit continuation Benefit continuation Benefit continuation

Rea

son

for L

eave

Dur

atio

nB

enef

its

Employer Coverage ComparisonFMLA CFRA PDL New Parent Leave

Act (NPLA) –1/1/18

50+ employees any 20

workweeks in current or prior calendar year

50+ employees any 20 workweeks

in current or prior calendar year

5+ employees 20 to 49 employees

Count FT, PT, temp EEs, AND leased workers

Count FT, PT, and temp EEs, AND leased workers

Count FT, PT, and temp EEs

Same as CFRA?

Federal, state, local public agencies

State and local public agencies



Employee Eligibility ComparisonFMLA CFRA PDL New Parent Leave

Act (NPLA) –1/1/18

(1) 12 months of employment – by 1st day of leave

Same No tenure requirement Same as CFRA

Employment prior to 7 year gap in service does not count

Employment prior to 7 year gap in service does not count

Not applicable Same as CFRA?

Credit for service while on National Guard or Reserve duty

Credit for military service Not applicable Same as CFRA?

(2) 1250 hours – by 1st day of leave

(2) 1250 hours – by 1st day of CFRA leave or 1st day of PDL if PLD taken before CFRA

No hours requirement Same as CFRA?

Employee Eligibility ComparisonFMLA CFRA PDL New Parent Leave Act

(NPLA) – 1/1/18

(3) 50+ EEs within 75 miles of worksite - as of date notice given

(3) Same Coverage rules require employer have 5 EEs

20 to 49 EEs within 75 miles of worksite

Applies to EEs “not subject” to FMLA or CFRA

Only staffing company counts leased worker if not at a customer facility for 1 year

If worker at a customer facility for 1 year, only the customer counts him

Same Silent; likely follows CFRA

Same as CFRA?

Employer Notice ComparisonFMLA CFRA PDL New Parent Leave Act

(NPLA) – 1/1/18ER must post notice and

publish policy in EE handbook or disseminate policy upon hire

ER must post notice and publish policy in EE handbook and is encouraged to disseminate policy to employees and new hires

ER must (i) post notice; (ii) publish policy in EE handbook or provide it annually; and (iii) give EE notice information upon learning of need for leave, transfer or accommodation

Same as CFRA?

New electronic posting rules Electronic posting OK s long as it meets other requirements.

OK for poster and annual distribution; silent as to other notice obligations. New CFRA regs permit combination of CFRA and PDL notice.

Same as CFRA?

ER has 5 business days to respond to EE’s leave request

ER has 5 days to respond to EE’s leave request

ER has 10 days to respond to EE’s leave request

Same as CFRA?

Retroactive designation OK, unless it causes harm to EE

Same based on new regs Silent; unclear Same as CFRA?

Translation where significant portion of workers not literate in English

Translation where 10% of EE population at any facility speak a foreign language as their spoken language

Translation where 10% of EE population at any facility speak a foreign language as their primary language

Same as CFRA?

Sick Days

Jurisdiction EffectiveDate Accrual Begins

New Hire Waiting Period

for UseAccrual Rate Yearly Accrued Time

Cap1

San Francisco2 2/5/2007 90 days after hire none 1 hr / 30 worked 40 / 72 hours

Oakland3 3/2/2015 Upon hire 90 days 1 hr / 30 worked 40 / 72 hours

Emeryville4 7/1/2015 Upon hire 90 days 1 hr / 30 worked 48 hrs / 72 hours

Los Angeles 7/1/2016 Upon hire 90 days 1 hr / 30 worked 48 hours

Santa Monica5 1/1/2017 Upon hire 90 days 1 hr / 30 worked 2017 – 32 / 40 hours2018 – 40 / 72 hours

San Diego 7/11/2016 Upon hire 90 days 1 hr / 30 worked 40 hours

Berkeley 10/1/2017 Upon hire 90 days 1 hr / 30 worked 48 hrs / 72 hours

NOTES1 Methodologies differ 4 55 or fewer, 56+ EEs 2 Fewer than 10 EEs, 10+ EEs 5 25 or fewer EEs, 26+ EEs3 Fewer than 10 EEs, 10+ EEs 6 Fewer than 25 EEs, 25+ EEs


Local Minimum WageCA Minimum Wage

Date 26+ EEs 25 or fewer EEs

1/1/17 $10.50 $10.00

1/1/18 $11.00 $10.50

1/1/19 $12.00 $11.00

1/1/20 $13.00 $12.00

1/1/21 $14.00 $13.00

1/1/22 $15.00 $14.00

1/1/23 $15.00

1/1/24 Increases annually up to 3.5% based on CPI

CA cities with their own min wage laws:

• Berkeley• El Cerrito• Emeryville• Long Beach• Los Angeles City• Los Angeles County

(unincorporated only)

• Mountain View• Oakland• Palo Alto• Pasadena• Richmond• Sacramento• San Diego City• San Francisco• San Jose• Santa Clara City• Santa Monica• Sunnyvale


Please visit our website www.VantaggioHR.com.Lynda Dickey916-320-0852

[email protected] County, CASan Francisco, CASacramento, CASan Diego, CA

Honolulu, HIMaui, HI

Thank you for Attending!

10 sure fire ways to get sued by your employees …...employee eligibility comparison fmla cfra pdl...

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