The Essential – April 2023 Edition

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April 2023 // Volume 11 // Issue 1

SPRING UPDATE

Hello Clients and Friends,

Welcome to the Spring Edition of the Essential!

As the weather warms up and business needs change, this newsletter edition includes a couple of season-specific items such as hiring high school students and interns and how to remain compliant.  Also, be sure to read up on those pesky exempt and non-exempt classifications (which is which and are yours correct!), take a quick tour of the California Family Rights Act, and more. Spring has sprung and Summer is just around the corner.


Enjoy and be well,

Sonya L. Kemp – Founder and President

Summer is Almost Here – Could Student Workers Fill One or More Gaps?

With summer just around the corner, students are starting to look for job opportunities to earn some extra cash and gain work experience.

Company Benefits:

  • Students may bring new ideas and different perspectives
  • Possible increased productivity by bringing in extra help to work on those short-term projects
  • Coaching students may help develop the leadership skills of your current staff
  • You are hiring extra talent at a reasonable cost

Student Benefits:

  • Earn money
  • Builds confidence and independence
  • Learn new skills and work experience
  • Meet new people
  • Learn more about what kind of career they want in the future

The Process:

But what if the student you are hiring is a minor?  There are federal and state child labor laws designed to protect students.  These laws protect students from working early, too late, and too many hours in addition to performing tasks that might cause injuries or illnesses.

All minors under 18 years of age employed in California must have a work permit issued by school officials before they are employed.  Noncompliance may result in penalties.

Company Action and Obligations:

  • You must have a valid Permit to Employ and Work.  During school time, the Permit to Employ and Work is usually issued by an authorized person at the student’s school.  During the summer months or when the school is not in session, the work permit is obtained from the superintendent of the school district in which the minor resides.
  • The permit expires five days after the opening of the next succeeding school year and must be renewed.

Student Action and Obligations:

  • After an employer agrees to hire a minor, the student obtains from their school a Department of Education form titled Statement of Intent to Employ Minor and Request for Work Permit.  This form must be completed by the student and the employer and signed by the student’s parent or guardian and the employer.
  • The student must return the completed forms to the school, and the school officials may issue the permit to employ and work.

More detailed information including all restrictions on minimum age and all work hours restrictions can be found in the following links: 
California Child Labor Laws Booklet

https://www.dir.ca.gov/dlse/dlse-cl.htm

Internships – To Pay, or Not to Pay,
that is the Question?

Summertime is often the time of year when companies are looking to hire interns to help do some of the monotonous tasks, complete unfinished projects, or work on new projects that may take time to research and implement.  Employers can gain brand recognition and improve community relationships through internship programs.  Employers can benefit greatly from hiring an intern, and interns can benefit by gaining work experience in the field of their studies.  An internship program can turn out to be the source of the company’s next great employee!

But am I required to pay an intern in California?  The answer surprisingly is “No”.  It is recommended to pay for the internship to avoid getting in hot water if there is not a valid program in place.

Unpaid internships are legal in California.  However, if the Company is thinking about offering an unpaid internship program, the Company must meet two sets of standards: state law, and federal law.

To comply with federal law,  the Company must complete the Seven-Part Primary Beneficiary Test created by the Department of Labor (DOL) to verify if the program qualifies for an unpaid internship.

The courts have used this test to determine whether an intern is, in fact, an employee under the Fair Labor Standards Act (FLSA).  If the results of the test show that an intern is an employee, then the company must pay at least minimum wage and overtime pay under the FLSA.

In order to comply with federal law, if you are looking into implementing an unpaid internship consider doing the following:

  • Conduct the Seven-Part Primary Beneficiary Test
  • If the program passes the test, create a program that specifically addresses the seven factors on the test
  • Lay out clear requirements of the program
  • Issue and have each intern sign a letter of understanding that states that the internship offers no compensation
  • Do not make any promises

In addition, in California, if you are hiring for an unpaid internship, the employer is required to submit an outline of the proposed internship to the Division of Labor Standards Enforcement (DLSE) and the internship must meet the following criteria to be approved:

  • The internship must take place as part of an educational program, requiring participation in school or something similar
  • The intern is prohibited from receiving any employee benefits, including insurance and workers’ compensation insurance
  • The intern must be trained to work in a specific industry
  • When the employer is trying to find an intern, they must be transparent about the fact that it is going to be unpaid

Remember, internships are supposed to offer training that formally links to academics.  The beneficiary of the internship must be the intern, who is learning new skills of educational benefit.  If the intern’s assignment only includes filing, picking up coffee and lunch for the staff, and answering the phones, without any academic benefit, the unpaid internship does not pass the test and it may be illegal.

Do You Have Exempt Employees?
Are They Classified Correctly?

What would you do if an exempt employee claims you owe them overtime pay?

Misclassification of an exempt employee happens often, and this mistake can cost employers thousands of dollars.  After all, it is the employer’s responsibility to demonstrate that employees in exempt positions are classified correctly.  It is very common to want employees to be exempt because it is easy to administer, no timecards to review, no overtime to calculate, and no meal penalties to pay, etc.

But how do you determine if an employee should be classified as exempt?   The California Industrial Welfare Commission (IWC) established exemptions to an employer’s obligation to provide overtime pay for executives, administrative, and professional employees.

What is an exemption?  The exemption may apply if the employee is primarily engaged in duties that meet the test of the exemption.

What is the test?  Three factors must ALL be in place for an employee to be classified as an exempt employee:

  1. Salary:  The minimum salary required for an exempt employee in California is two times the state minimum wage.  For 2023 the hourly minimum wage is $15.50 per hour X 2,080 hours/year X 2 = $64,480.  This means that if you are paying an exempt employee less than $64, 480 per year, this employee does not qualify for exempt status.  The salary requirement is based on the state’s minimum wage and is not affected by any local or regional minimum wage ordinance.
  1. Salary Basis: The salary basis shows how the exempt employee is paid.  The employee must be paid a predetermined, fixed salary.  This means the salary cannot change from week to week based on the quality or quantity of work.
  1. Duties Test: In California, the duties test is interpreted to mean that the employee must perform exempt-level work more than 50% of the time in the workweek.  A job title, a high salary, and/or a job description do not determine the exemption status.  The exemption status is determined by what the employee actually does. The employee must exercise discretion and independent judgment in performing their duties.

What are the penalties for misclassifying an employee?
Penalties for misclassifying an employee can range from $5,000 to $15,000 and if the employer is proven to engage in a pattern of willful misclassification, the courts can fine an additional $10,000 to $25,000 or more.

In addition, if the employee has been underpaid due to salary misclassification, the employer can be ordered to pay back up to three years’ worth of back pay that the employee was entitled to receive.

Employers can be subject to civil penalties for failing to pay in full or on time when they have intentionally misclassified. The court can also require the employer to pay interest on the amount that it owes to the employee.

California Family Rights Act (CFRA)

In the last few months, we have received questions regarding CFRA, a job-protected leave of absence, and wanted to share and answer a few of them:

Q.  How many regular full-time employees and/or part-time employees do I need to have to qualify for CFRA?
A.  CFRA applies to employers with 5 or more employees.

Q.  Who is eligible for CFRA?
A.  Employees who have worked for the company for at least 12 months and have worked 1,250 hours in the 12 months before the start of the leave.

Q.  Does CFRA cover only family members?
A.  CFRA covers not only family members but also (as of 1/1/23) covers any “Designated Person”.  What does a Designated Person mean?  For example, if you have a good friend who is ill and needs care, you may request time off under CFRA to care for your friend.

Q.  May CFRA be only used for serious health conditions?
A.  CFRA may be used for:

  • Birth of a child, including the child of the employee’s domestic partner.
  • Placement of a child for adoption or foster care.
  • Caring for a child, parent, parent-in-law, spouse, registered domestic partner, sibling, grandparent, or grandchild with a serious health condition.
  • The employee’s serious health condition, excluding pregnancy.
  • A qualifying military exigency related to the call to active duty of an employee’s spouse, domestic partner, child, or parent in the United States Armed Forces.

Q.  Are employees paid during CFRA?
A.  CFRA is unpaid.  However, employees may apply for State Disability Insurance benefits or Paid Family Leave.  Both programs are administered by the Employment Development Department (EDD).

Q.  A California employee’s immediate family member passed away and they need to take time off. Am I required to give the employee time off?
A.  As of 1/1/23, AB 1949  requires employers subject to CFRA to allow eligible employees up to five days of bereavement leave upon the death of a qualifying family member, spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law, as defined in CFRA.  The five days of bereavement leave are separate from the 12 weeks of leave permitted under CFRA.   Bereavement leave should be taken no more than three months following the death of the family member and the days do not need to be taken consecutively.  Employees are eligible once they have been with the company for at least 30 days prior to the start of the bereavement leave.

Pay Transparency

As we know, effective January 1, 2023, California enacted the Pay Transparency Law.  This means employers with 15 employees or more with at least 1 employee located in California, must post the pay range of the position in the job posting.  In addition, current employees who request the pay range for their position from the employer must receive it.

Further, employers with 100 employees or more must submit annual pay data reports to the California Civil Rights Department (CRD).  This new  California Data Report must include all job categories and within these race, ethnicity, and sex, the median and the mean hourly rate of employees  The California Pay Data Reporting is due the second Wednesday of May annually, beginning  May 10, 2023.

California Paid Sick Time Off

Did you know?  When you hire a seasonal employee and they work 60 days in one year, for example, an intern, and you rehire that intern within one year to work another 60 days, the Paid Sick Law requires that their accrued and unused sick leave be restored if they return to work for you within 12 months from their previous separation date.
Click on the link for more information:
https://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm

Reporting Pay Time

Q.  My staff needs vary.  If I need to cancel the shift of an hourly worker before they arrive at the Company, are they owed pay of any type?
A.  The answer is no.  Employers are not required to pay an employee Reporting Pay Time as long as they were informed ahead of time there is no work available before they arrive at the Company.  Reporting Time Pay is only required when an employee:

  • Is physically at the workplace at their shift start time
  • Works remotely by logging on to a work computer
  • Visits a client’s job site
  • Sets out on a trucking route
  • Is required to call the company two hours prior to the start of a shift to determine if they are scheduled to work

Q.  How much do I have to pay if the employee is already at the worksite, and I have to send them home?
A.  When an employee is at work and their shift is canceled or is shortened, the Company must pay a minimum of 2 hours up to 4 hours of the scheduled shift.

Q.  Are there any exceptions to the requirement for Reporting Time Pay?
A.  Yes, there are exceptions to the requirement:

  • When operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue
  • When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities or sewer system
  • When the interruption of work is caused by an Act of God or other cause not within the employer’s control, for example, an earthquake
Click on the link for more information:
https://www.dir.ca.gov/dlse/faq_reportingtimepay.htm

Things to Remember

Sexual Harassment and Abusive Conduct Prevention Training
California law requires that all employers of 5 or more employees provide 1 hour of Sexual Harassment and Abusive Conduct Prevention training to nonsupervisory employees and 2 hours to supervisory employees every two years.  Are you in compliance?

Handbooks
In 2023 there were a lot of changes to the laws, for example, CFRA, pay transparency, bereavement leave, and prohibition of discrimination based on reproductive health decisions, just to name a few.  Is your handbook up to date?

Questions?  Contact Us!

We invite you to reach out to us for support on matters such as reviewing your employee handbook, scheduling and training employees on Harassment Prevention Training, or any other HR matters.  Please feel to reach out to us at [email protected] for support.

Key Dates

Sunday, 4/30 –  OSHA Log Last Day to be Posted (Must be taken down May 1)
Monday, 5/29 –  Memorial Day
Monday, 6/19 –  Juneteenth
Wednesday, 6/21 – First Day of Summer
Tuesday, 7/4   –  4th of July
Monday, 9/4   –  Labor Day

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This publication is intended to provide general information only and is not intended as a source of legal advice.  You should not assume that any information included applies to your specific situation.  Accordingly, you should not use this information as a substitute for legal advice from a licensed attorney.

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