Lumps of coal for employers’ holiday stockings
By Jonathan Light
There is great uncertainty about whether proposed federal wage and hour laws are going to be implemented in 2017, but there are plenty of other things to worry about on the employment law front in California. Regardless of the federal implementation, we won’t see much federal effect in California.
Here are just a few new headaches:
Our state’s employers are required to follow the law that most favors employees and that’s almost always state law.
The California minimum wage far exceeds federal law ($10.50 in California starting in 2017, versus $7.25 nationally), and that ties directly to the minimum salary to be exempt from overtime and meal and rest break rules.
The state’s salaried-exempt employee threshold is now $43,680 annually (two times minimum wage at 40 hours per week), which is not far below the $47,476 federal proposal that has been enjoined by a federal court in Texas. This would be a good time to audit your lower-level salaried personnel to see if they are properly categorized under both the “salary” test above and the “duties” test (i.e., do they spend more than 50 percent of their time on higher level duties).
But the No. 1 wage and hour issue that still plagues employers is meal breaks for non-exempt employees; no change in the law there. So audit your time records to ensure a full 30 minutes that begin by the end of the fifth hour of the workday.
The new marijuana use law doesn’t heavily impact your workplace. Marijuana is still illegal under federal law and that’s the employer’s easy fallback if challenged.
Applicants or employees who flash their compassionate use card are not entitled to special privileges.
Employers do have to engage in a reasonable accommodation dialogue to determine if the applicant or employee can obtain an alternative pain medication that is legal. If an employee is caught using drugs before informing the employer, however, termination is legal unless you want to have them sign a “last chance” agreement that allows the employer to randomly test them going forward. Otherwise, random testing is not allowed unless the employee is in a “safety sensitive” position. New OSHA regulations make it more difficult to drug test after a workplace injury, so be careful when you send your injured employees to the clinic for an exam. They may be tested if drugs might be a cause of the accident. For example, if it’s a bee sting, or a car accident in which the employee is only a passenger, the employer would not be able to test.
Under new federal OSHA guidelines, violators may now be “outed” online, so shore up your safety practices, and don’t have “safety bingo” or other safety incentives that actually inhibit reporting of injuries. The state’s OSHA is also implementing indoor heat safety regulations beginning in 2018.
San Francisco and Los Angeles have passed “ban the box” statutes that prevent asking about criminal convictions at the application stage. California may well follow suit soon, since much wage and hour law starts in San Francisco, then to Los Angeles, then statewide.
Individual cities are also implementing their own minimum wage and sick leave laws, so check your local jurisdictions to ensure you’re in compliance with higher thresholds than the state requires.
The California Equal Pay Act covering gender pay equality has been expanded for 2017 to include race and national origin, and employers of a certain size or with federal contracts will now be required to report on their EEO-1 the salary ranges by these categories.
Also, employers now should not ask applicants about prior salary levels, as that cannot be a factor in setting the employee’s new salary. We don’t know how significant this law is going to be in practice, but this is a good time to audit salaries to uncover patterns of lower wages for these categories of workers.
Finally, if you have single-user restrooms designated “Men” and “Women,” you’ll have to make them unisex as of Jan. 1.
Those are just a few of the 40-plus employment laws that will be enacted for 2017, and there certainly will be more to come with the new Democratic supermajority in the state legislature.
• Jonathan Light is the managing attorney at LightGabler in Camarillo.