The Essential – February 2024 Edition









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February 2024 // Volume 13 // Issue 1

WINTER UPDATE

Hello Clients and Friends,

Welcome to the Winter Edition of the Essential!
 

Although we are typically “California-centric,” EBHR works with a number of clients that have multiple locations or remote employees. So in this issue, we talk about a major federal update, as well as states that have joined the pay transparency wagon (or have had updates). We include some important California reminders and information about employer-provided health benefits that we hope will be useful.

Our next issue will be in May 2024. 

 
Enjoy and be well,

Sonya L. Kemp – Founder and President
 

DOL Issues Final Rule on Independent Contractor Status

The Department of Labor (DOL), a federal agency, revisited the Independent Contractor status issue in October 2022 following a delay under the prior administration. A final rule was issued on 1/10/24, and barring challenges, will become effective 3/11/24.

The final rule in determining whether a worker is an independent contractor or employee will be based on six factors:

  • Opportunity for profit or loss depending on managerial skill
  • Investments by the worker and the potential employer
  • Degree of permanence of the work relationship
  • Nature and degree of control
  • Extent to which the work performed is an integral part of the potential employer’s business
  • Skill and initiative.

The DOL may consider other factors if the factors relate to the issue of economic dependence. In addition, the DOL clarified that they would review the totality of circumstances as it related to the economic reality test, and that there is no predetermined weight to the six factors.

Employer Action To Be Taken:  If you are an employer in a state where these federal rules apply (some states, like California, have their own laws on independent contractor rules), you will want to revisit how you are classifying your employees vs. independent contractors.  Each employee will need to be evaluated individually.

Don’t forget your ABCs in California: Don’t forget in California, all workers are presumed to be employees. Employers must apply the ABC test to assess whether an individual meets the independent contractor definition.  

Regardless of the final DOL ruling, CA employers are cautioned to consider adopting the most restrictive independent contractor definition to avoid misclassification woes.  

If you need assistance, EBHR is here to help! Keep in mind that misclassification penalties can include paying back wages, back taxes, potential legal fees, and fines.

 

Additional and Updated Pay Transparency Laws

Hawaii and the District of Columbia now join California, Illinois, Maryland, Colorado, and New York in enacting wage transparency laws.  Colorado has expanded its laws.  Here’s a summary:

Hawaii:  As of January 1, job listings must include an hourly rate or salary range that reasonably reflects the actual expected compensation for a relevant position.  The law does not apply to 1) positions that are internal transfers or promotions, 2) public employees subject to a collective bargaining agreement and c) positions with employers with fewer than 50 employees.  More information can be found HERE

Colorado: As of January 1, Colorado’s pay transparency law has been updated to include stating the application deadline in internal and external job listings, how to apply for the job opportunity, and information on benefits and other forms of compensation.  If there is no application deadline, then employers just need to state that there is no deadline in the job ad. 

Colorado has further extensive provisions including making reasonable efforts to disseminate information on all opportunities to Colorado employees on the same day a position opening occurs. As with other states, exclusions apply.

More information can be found HERE and HERE

Washington, DC: The wage transparency law is slated to take effect this Summer on June 30, 2024.  The modified District of Columbia Wage Transparency Act will cover an employer (except for government employers) with at least one employee in DC including remote positions that could be filled in DC.  A covered employer must disclose the minimum and maximum good-faith expected salary or hourly pay in all advertised job listings and position descriptions. The employer must also disclose to applicants if health benefits are offered.  This law will also prohibit seeking wage histories from job candidates or their former employers.  More information can be found HERE

California’s Fair Chance Act “Ban the Box”

California’s Fair Chance Act took effect in January 2018, but since 2021, the California Civil Rights Department (formerly the Department of Fair Employment and Housing) has stepped up efforts in monitoring violations.

As a reminder, private and public employers with five or more employees are subject to this law. Employers may not ask applicants about their criminal history until after a conditional offer is extended. That’s not all. Employers may not consider (a) an arrest that did not result in a conviction, (b) convictions that have been sealed, dismissed, expunged, or statutorily eradicated and (c) referral to or participation in a pretrial of post-trial diversion program.

So what does this mean?  This means that employers must take specific steps before they can rescind a conditional job offer based on the criminal history of the applicant, and it involves a step-by-step process which involves participation on the part of the employer and applicant.  More information, as well, as sample forms, can be found the Fair Chance Act web page of the Civil Right Department.

Choosing the Right Health Benefits for Employees

Navigating health benefits can be a minefield.  Multiple plan options, costs, and Affordable Care Act mandates can make it difficult for an employer to know what to offer their employees.  At the same time, a company’s health benefit offerings can be a major recruitment tool and can also be a motivating factor for your employees to look elsewhere.

The first step is not to go it alone.  Partnering with a qualified benefits broker will save you a lot of time and energy.  But before you have your broker perform all the necessary research, here are a few things to consider:

A one-size-fits-all approach is not likely to serve your employee population well. While you may not be able to offer a vast array of health benefit options, it’s good to at least offer some alternatives that would fit various needs and budgets.  One way to discern what your employees need is to ask them via a short survey.  This would give you a starting point with your benefits broker rather than spending company money on health benefits that no one will use.

While digital solutions are growing and becoming increasingly popular, not everyone wants virtual appointments.  Telehealth should be an option but not the sole consideration when choosing benefits.  If it becomes impossible for your employees to get the in-person care that they need, it could cause frustration and lost productivity.

Finally, be sure to review your benefit offerings annually ahead of open enrollment.  This is a good time to not only review benefit costs, but as new products become available and employee needs change, it’s a good time to ask your benefits broker about new providers and alternatives.  Besides the common benefits of medical, dental, and vision care, there’s a host of other products such as supplemental long-term care insurance, life insurance, Employee Assistance Programs, and more.
 

COMING SOON!

Workplace Violence Prevention Plan
In July 2024, covered employers will need to develop and implement a workplace violence prevention plan as part of their Injury and Illness Prevention Plan (IIPP). 

The program will require employers to create and implement a written Workplace Violence Prevention Plan, train employees and supervisors on workplace violence matters, create and maintain a violent incident log, and keep records of all training and violent workplace incidents that occur. 

HERE are some updated FAQ on the new law.  We will touch upon this legal requirement further in our upcoming May 2024 issue of the The Essential, but it is suggested that employers start the review process now.

 

Things to Remember

Reminder:  California Fast Food Industry Minimum Wage (AB 1228)
As we wrote about in our November 2023 newsletter, the minimum wage for fast-food workers will be $20.00 an hour effective April 1, 2024.  Even if your business is not subject to this law, it may impact your ability to hire and retain workers as competition tightens for hourly wages.  More information can be found HERE

Reminder: California Non-Compete Notifications
Employers must notify current and certain former California employees who signed any non-compete clause or agreement that the restriction is void. Employers must do this by February 14, 2024, or risk liability for an act of unfair competition. If you have not reviewed your agreements that may contain non-compete clauses, now would be the time before the deadline.  More information can be found HERE
 

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

Saturday, 2/10 – Lunar New Year
Wednesday, 2/14 – Ash Wednesday | Valentine’s Day
Saturday, 2/17 – Random Acts of Kindness Day
Monday, 2/19 – President’s Day
Sunday, 3/10 – Ramadan | Daylight Savings Time Begins
Sunday, 3/17 – St. Patrick’s Day
Friday, 3/29 – Good Friday
Sunday, 3/31 – Easter
Monday, 4/15 – Tax Day
Monday, 4/22 – Passover | Earth 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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