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May 2024 // Volume 13 // Issue 2
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Hello Clients and Friends,
Welcome to the Spring Edition of the Essential!
Spring is in the air…as are constant changes in labor law development in California and around the country. Read further as we address some common issues concerning the hiring of remote workers, the new DOL exempt salary threshold rules, California’s Workplace Violence Prevention Program, and more.Come join us for an HR roundtable in Santa Fe Springs, California on June 11 – details below.
Our next issue will be in August 2024.
Enjoy and be well,
Sonya L. Kemp – Founder and President |
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Be Our Guest!
HR Roundtable Learning Event
Santa Fe Springs, California
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| Just in time for warmer weather, EBHR will sponsor a Santa Fe Springs Chamber of Commerce HR learning event over lunch on June 11, 2024 from 11:45 am to 1:00 pm.
The topic will be Professional Standards at Work
Presenter: Paul Fleck of Atkinson, Andelson, Loya, Ruud and Romo
Location for June Event:
Town Center Hall
11740 Telegraph Road
Santa Fe Springs, CA 90670
Want to attend? To reserve one of our limited guest slots, email us at [email protected] by June 1. |
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DOL Publishes Final Rule on Salary Level for Exempt Employees
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| The Fair Labor Standards Act (FLSA) generally requires employers to pay an employee overtime if the employee works more than 40 hours in a week (state laws may differ). These employees are known as non-exempt (hourly) employees. Exempt employees, on the other hand, are paid a salary and are exempt from overtime. However, exempt employees must meet a duties test under certain categories of employees as well as a salary threshold test.
This post is about the final rules by the Department of Labor on the increased salary threshold for exempt employees that will take effect in two stages. Effective July 1, 2024, the annual salary threshold will be $43,888 and in January 2025, the annual salary threshold will increase to $58,656.
If an exempt employee already earns those minimums, there is no action needed. Otherwise, employers will need to review exempt employee salaries and either increase the salaries or reclassify those employees as non-exempt.
There are three things important to note:
- Some states have higher thresholds so those state rules will apply.
- This final rule may still be challenged (as it was in 2016) and could be overturned by July 1, 2024. Therefore, you may wish to start the planning process but hold off until as close to the July 1 date as possible.
- If you are considering reclassification, it is recommended that you speak with labor counsel as the decision to reclassify may be complex depending on your situation.
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California Workplace Violence Prevention Program
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As promised in our last issue, we bring you further developments on the Workplace Violence Prevention Program (WVPP) – a plan that all employers in California must have in place by July 1, 2024. Senate Bill 553 requires all employers to establish, implement, and maintain an effective WVPP.Don’t know where to start? Cal-OSHA published a model plan for non-healthcare settings that employers may use as well as an employer fact sheet.
The WVPP may be a stand-alone document or may be integrated with your Injury & Illness Prevention Program – another plan that is required of all employers in California.
The WVPP must include specific procedures including training and maintenance of a log.
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California Cannabis Use &
Employer Drug Testing
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California Assembly Bill 1288 prohibiting most California employers from discriminating against individuals based on their off-the-job cannabis use took effect on January 1, 2024. This includes hiring decisions, terminations, or any term or condition of employment, or otherwise penalizing a person for using marijuana off-the-job and away from the workplace. Under Senate Bill 700, employers cannot inquire or request information about an applicant’s prior use of cannabis.Additionally, AB 1288, requires employers who drug test for pre-employment or reasonable suspicion to test only for the psychoactive ingredient of cannabis which is Tetrahydrocannabinol (THC).
AB 1288 does not apply to positions that require a federal background investigation or security clearance, positions in the building or construction trades, and it does not preempt state or federal laws that require applicants or employees to be tested for controlled substances.
Further, employees may still not report to work or work on the job while under the influence of marijuana.
Tips to comply with AB 1288 and SB 700:
- Inform and train hiring managers not to ask about off-duty cannabis use or prior cannabis use
- Review your current drug and alcohol policies to ensure they align with the new law
- If drug testing, confirm with the drug testing vendor that they are only testing for THC
Please note that these new laws only prohibit discrimination based on cannabis used outside of work. Employees may not report to work or work on the job while impaired by marijuana, nor are they permitted to possess or use it in the workplace. Employers may still maintain a drug and alcohol-free workplace. We recommend that a drug and alcohol policy be included in your handbook to ensure employees are aware of your company’s policies. EBHR can assist you with developing this policy – schedule a call with us to find out more.
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Protecting Confidential Information in a Remote/Hybrid Environment
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| Now that remote and hybrid work has become the norm in some workplaces, companies need to be mindful of trade secrets and other confidential information. Even if you provide employees with a laptop and other equipment, it’s important to ensure that remote/hybrid workers don’t use public Wi-Fi and that they use a secure VPN or 2-factor authentication to log into websites. Strong passwords should be used.
Additionally, make sure your employees are aware of your confidentiality policies and if appropriate, have them sign non-disclosure agreements. When employees are away from the home office, it’s easy to forget about these policies, especially for the nomad employee. |
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Hiring Out-Of-State Remote Employees
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During the pandemic, we saw scores of employees self-relocate outside of states where their company was located. While much of remote work has transitioned to hybrid work environments, many employees still work remotely out of state.What does this mean for employers who have or are considering having remote employees?
Employers can hire out-of-state remote employees, but they must follow the employee’s home-state laws. Here are some items to take into consideration when deciding to hire an out-of-state remote employee:
- Understand the employee’s local and state employment laws such as minimum wage, breaks, overtime, employment contracts, mandated paid or unpaid leaves, mandated training, and other labor-related items.
- Understand the state’s tax requirements and how to apply.
- Confirm if your company is required to establish a legal business presence within the employee’s home state.This can be required even in states that do not have a state income tax.
- Review worker’s compensation coverage requirements.
- Update your handbook with that state’s employment policies.
- Create a remote work policy that addresses:
- Current positions and new positions eligible to be remote
- Rules and requirements for remote employees
Taking these items into consideration will help you decide if you are ready to hire out-of-state employees. We also recommend reaching out to your payroll provider as some payroll providers can assist with out-of-state tax setup.
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Pregnant Workers Fairness Act Update
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| As we wrote about in our August 2023 The Essential, the PWFA took effect in June 2023. However, the final rules on how the law would be interpreted were not published until April 19, 2024, by the U.S. Equal Employment Opportunity Commission (EEOC).
As a reminder, The PWFA requires employers with at least 15 employees to make reasonable accommodations for the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee or applicant, unless they can demonstrate the accommodation would pose an “undue hardship.”
While there are some similarities to the Americans with Disabilities Act and – for those in California – the Pregnancy Disability Act, there are some notable differences.
One such difference is that the PWFA allows for the temporary inability of an employee to perform an essential function of their position. An employee remains qualified if:
- Any inability to perform an essential function is for a temporary period;
- The essential function could be performed “in the near future;” and
- The inability to perform the essential function can be reasonably accommodated (absent undue hardship).
The EEOC has clarified that “if the employee is pregnant, it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension.”
This means that employers may potentially be required to provide reasonable accommodation even if the employee cannot perform the essential functions for a period of up to 40 weeks, barring an undue hardship.
Another notable difference is that the EEOC has determined that the following reasonable accommodations will not cause undue hardship in “virtually all cases”:
- To carry water and drink as needed during the workday;
- Additional restroom breaks;
- To sit when their work requires standing, and standing when their work requires sitting; and
- Breaks as needed to eat and drink.
Further, under the PWFA, employers may request documentation to “confirm the physical or mental condition,” that it’s related to pregnancy, childbirth, or related conditions, and a description of the adjustment needed.
For employers in California, California law is more restrictive and only allows documentation with a description of the requested accommodation, a statement that the accommodation is medically advisable, and the estimated timeline for the accommodation. California employers should follow California’s more stringent rules on medical certification.
Employers can read more about the key provisions on the EEOC website.
Because these situations can be difficult to navigate, we recommend consulting with your labor attorney for complex requests for accommodation from employees. |
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Reminder: Pay Data Reporting
California employers with 100 or more employees have until May 8, 2024, to report 2023 pay data.
Reminder: Getting Ready for Summer Interns?
Read our blog post from the April 2023 edition of The Essential to comply with laws for hiring interns. |
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We invite you to reach out to us for support on matters such as reviewing your employee handbook, crafting policies, employee relations issues, benefits management, 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.
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Sunday, 5/5 – Cinco de Mayo
Sunday, 5/12 – Mother’s Day
Saturday, 5/18 – Armed Forces Day
Monday, 5/27 – Memorial Day
Sunday, 6/16 – Father’s Day
Wednesday, 6/19 – Juneteenth
Thursday, 7/4 – Independence 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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