If you are in any of the following businesses you are now required to post a Human Trafficking Notice as required by Civil Code Section 52.6:
- On-sale general public premises licensees under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code).
- Adult or sexually oriented businesses, as defined in subdivision (a) of Section 318.5 of the Penal Code.
- Primary airports, as defined in Section 47102(16) of Title 49 of the United States Code.
- Intercity passenger rail or light rail stations
- Bus stations.
- Truck stops. For purposes of this section, “truck stop” means a privately owned and operated facility that provides food, fuel, shower or other sanitary facilities, and lawful overnight truck parking.
- Emergency rooms within general acute care hospitals.
- Urgent care centers.
- Farm labor contractors, as defined in subdivision (b) of Section 1682 of the Labor Code.
- Privately operated job recruitment centers.
- Roadside rest areas.
- Businesses or establishments that offer massage or bodywork services for compensation and are not described in paragraph (1) of subdivision (b) of Section 4612 of the Business and Professions Code.
More information is available at http://oag.ca.gov/human-trafficking/sb1193
The model notice can be obtained by going to http://oag.ca.gov/sites/all/files/agweb/pdfs/ht/HumanTraffickMandate_ENG.pdf
The bill itself can be found at http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1151-1200/sb_1193_bill_20120924_chaptered.html
As stated by the DOL “OFCCP is issuing this Directive in support of its ongoing policy commitment to address pay discrimination by federal contractors and subcontractors. This Directive specifies the procedures OFCCP field investigators use for reviewing contractor compensation systems and practices. It clarifies and improves OFCCP procedures in further support of the agency’s efforts to align pay discrimination enforcement with longstanding principles under Title VII of the Civil Rights Actof 1964 (Title VII).”
If you do government contracting you would be wise to follow these guidelines. Even if you are not a government contractor they point to the data they will be examining to address disparate compensation practices.
Here is an updated version of the FMLA employee handbook policy (Federal and California). Please amend your employee handbooks if you have 50 or more employees. You can get a copy of the updated FMLA poster by clicking here or order an updated all-in-one poster from American Labor Law Company. To read more about the new requirements, go to: http://www.dol.gov/whd/fmla/.
Here’s the deal: Since 1996 seventeen states and Washington D.C. have passed marijuana laws for medical/personal use. To date all the courts have ruled that on the job use or intoxication is not protected. California, Oregon and Washington State court rulings have said use itself, even if legal, does not prevent an employer from have a no drug policy for hiring or employment. Statutes like Michigan’s explicitly say “nothing in this act shall be construed to require an employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.”
Of course, as with a prescription drug where health and safety concerns govern it can be treated like the use of other prescription drugs. I doubt any court will require employers to hire stoner surgeons or crane operators. At least let’s hope not! It appears only the Maryland and Arizona statute specifically allows for use at works. Employers cannot discriminate against patients and caregivers and a positive test for marijuana metabolites is not cause for disciplining or terminating a patient. In a sense you have to catch them intoxicated in the moment, not just in their blood stream. Every one of these laws will be tested in court to find out where their workplace boundaries lie.
To the extent Federal laws such as DOT provisions and government contract drug-free workplace laws apply, they control. The Feds are still reviewing the situation as these laws impact on their ability to control illegal use and sale nationwide.
To keep abreast of these legislation trends here are two great resources:
Of course there are those who wonder what all the fuss is about. Here’s an interesting blog on the smokers view of drug testing for the weed.
Note: Just the millionth reason why employers should have their employee handbooks reviewed by an attorney on an annual basis.
Fact is many people in the HR role do not do the job full-time and very often do little or no proactive compliance efforts. One way to begin learning these laws is to watch or read the info generated by the government and lawyers on behalf of employees. For example, the DOL has just released and employee video education series. Minimum wage, regular pay, overtime, off-the-clock, child labor, independent contractor, migrant worker and how to file a claim videos are presented. We have training on each of these subjects for employers on HR That Works. A few more:
- OSHA on how they conduct inspections: http://www.osha.gov/SLTC/video/oshainspection/video.html
- Resources on workplace violence: http://www.osha.gov/SLTC/workplaceviolence/evaluation.html
- Memos and more on discrimination: http://www.eeoc.gov/laws/types/index.cfm
- Overtime: http://www.dol.gov/compliance/topics/wages-overtime-pay.htm#.UKErLobNnsk
- The plaintiffs lawyers association: http://www.nela.org/NELA/
Those are just a few examples. Where the government has done a good job of creating materials (like in the health and safety area) we have pointed to those tools on HR That Works too.
Bottom line: Don’t let your employees know more than you do about the law!
Now that he is geared up for another four years, the President is moving forward to implement healthcare law and ban discrimination against people with pre-existing conditions. See the press release from HHS here.
Here are some additional helpful publications. Of course,this represents the governments agenda. Check with your broker to learn even more and what you should be doing now to prepare for Obamacare!
- Information for Small Businesses (PDF)
- Top 5 Fact Sheet: Small Business Owners (PDF) (Spanish)
- Small Businesses and the Affordable Care Act (HTML) (PDF)
- Better Benefits, Better Health for Small Businesses (HTML) (PDF)
- The Affordable Care Act – What it Means for Employers (PDF) (Spanish)
- The Affordable Care Act – What it Means for Small Business (PDF) (Spanish)
Any time we are met with a disaster like Sandy one of the most common questions that are surface are around show up pay and payment of exempt salaries. Here’s what the law says about it:
Paying Employees Who Show Up and Have No Work to Do
While the FLSA does not address this directly, many states do. It is known as call-in or reporting pay. For example, under Mass. Law:
455 CMR 2.03– (1) Reporting Pay. When an employee who is scheduled to work three or more hours
reports for duty at the time set by the employer, and that employee is not provided with the expected
hours of work, the employee shall be paid for at least three hours on such day at no less than the basic
Here is an excellent summary created by SHRM so you can see the law in your state. http://www.shrm.org/LegalIssues/StateandLocalResources/StateandLocalStatutesandRegulations/Documents/Callbackcallinreportingpay.pdf HR That Works Members should all look at the BNA state law summaries under the Compensation folder.
Paying Exempt Employees Who Cannot Work
Bottom line is that if an employee is ready, willing and able to work, deductions may not be made for time when work is not available (29 C.F.R. 541.602(a)). You can have them use vacation or sick pay under appropriate conditions. Please see this FLSA memo for further instruction http://www.dol.gov/whd/opinion/FLSA/2005/2005_10_24_41_FLSA.htm#.UJFW1IawUYw
AB 1844 (Passed): This bill would prohibit an employer from requiring or requesting that an employee or applicant disclose user name or password information for personal social media, or to divulge any personal social media.
Chapter 2.5. Employer Use of Social Media
980. (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.
(b) An employer shall not require or request an employee or applicant for employment to do any of the following:
(1) Disclose a username or password for the purpose of accessing personal social media.
(2) Access personal social media in the presence of the employer.
(3) Divulge any personal social media, except as provided in subdivision (c).
(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.
SB 1255 (Signed): This bill would specify circumstances under which “injury” would be presumed to an employee as a result of an employer not providing wage statements, or providing incomplete wage statements. Presumed injury would allow the employee to recover penalties and/or actual damage. Presumed injury could be shown by the failure to provide a wage statement at all, or by the failure to include the employee’s name and last 4 digits of the social security number. It could also be shown by failing to provide complete wage information, causing the employee to be unable to determine (from the statement alone) gross and net wages earned, deductions therefrom, and the name and address of the employer.
“An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.
AB 1744 (Signed, effective July 1, 2013): This bill would require temporary services employers to include additional information on itemized wage statements for employees, including the rate of pay for each assignment, the name and address of the entity that secured the services and total hours worked for each entity.
AB 2103 (Signed): Payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee’s regular, non-overtime hours, notwithstanding any private agreement to the contrary.
AB 2674 (Signed): This bill would amend section 1198.5 of the Labor Code relating to employee rights to inspect personnel files. The bill would require employers to maintain employee personnel files for at least 3 years following termination of employment, and to permit current and former employees (or their designated representatives) to inspect and copy personnel records, within 30 days of a request to do so by the employee. The bill specifies that an employer is not required to comply with more than 50 requests for copies of personnel records by a representative of employee(s) in one calendar month.
And of course, HR That Works!