Employer's Report: Employers Report Post

Posted by California Employers Association on February 1, 2024

Tags: Employers Report

CEA is launching new offerings you won’t want to miss. Upskill your workforce with our new four week virtual training series, Elevate Your Expertise: An Upskilling Training Series on March 5. Join us at our new CEA offices for an onsite training, 2024 Labor Law Update Sponsored by Central Valley Community Bank on February 15, or spend the afternoon with us on March 28 for our first Workplace Investigation Certification Training.

Posted by [Add the Author Here] on February 1, 2024

Tags: Employers Report

This month we’d like to introduce you to two more California Employers Association team members that work to keep you informed of what’s happening at CEA! Meet Kelley Downey, Operations Assistant, and Stephanie Neely, Marketing Director.

Kelley Downey. Operations Assistant, CEA

1. When you are at work, how do you motivate yourself?

By being someone CEA can count on. To have a reputation for completing tasks accurately and in a timely manner.

2. What was your first job?

Cashier at Taco Bell.

3. Where did you grow up?

Modesto, California.

4. What is your favorite quote, motto, or words you live by?

Family dinners are sacred.

5. What was your favorite class in college?

Art History

Stephanie Neely, Marketing Director, CEA

1. What has been your favorite project at CEA so far?

So many! The website refresh was fun, creating specialized campaigns, and supporting our sister organizations are all really exciting.

2. What advice would you give to someone who is just starting their career?

Don’t be shy about telling your boss lofty goals, the good ones will help you reach them.

3. What was your first job?

Waitress at Happy Joe’s Pizza Restaurant

4. Where did you grow up?

Dallas, Texas. Bring on the BBQ!

5. What is your favorite quote, motto, or words you live by?

“Something must be in retrograde” whenever things take an unexpected turn.

Posted by Jessica Rivera MBA, PHR, SHRM-CP, Training & Coaching Director on February 1, 2024

Tags: Employers Report

“An ounce of prevention is worth a pound of cure.” We’ve all heard this quote at one time or another, but how might it work in business in terms and our valued employees?

As we reflect on 2023 results and plan for 2024, let’s take a look at the impact of investing in your employees’ professional development and why this is a critical element in your company’s strategy for success.

The saying “an ounce of prevention is worth a pound of cure” implies that taking proactive measures to prevent issues now is more effective than dealing with the adverse consequences later. For example, in 2017 Equifax experienced a massive data breach, exposing the personal information of approximately 147 million people. Settlement costs required Equifax to pay $1.38 billion to resolve consumer claims. It was later determined that poor data governance practices made the breach possible and by 2022, Equifax had invested an additional $1.6 billion to improve security and technology. Ouch!

CEA is often asked to assist with internal workplace investigations. In these situations, our HR Advisors assist your company in determining the facts surrounding a specific incident or concern. Whether it’s employee misconduct, harassment complaints or policy violations, the investigation process helps companies maintain a compliant and respectful workplace. We find that many workplace complaints and conflicts were avoidable, if only employees had received training in communications, conflict resolution and problem solving.

Investing in your employees prevents all types of issues including a lack of motivation, disconnection, and lackluster teamwork. Investing in your employees increases employee engagement and allows for open communication, feedback, and trust in the company. When companies invest in tools, technology, and training they are essentially upskilling their employees. These employees are now better equipped to handle evolving job requirements and new situations in the workplace.

Providing opportunities for training, career growth, while recognizing and rewarding performance keep talented employees engaged so they’re less likely to seek opportunities elsewhere.

One of the Forbes report’s most revealing findings was that 76% of employees say they’re more likely to stay with a company that offers continuous training.

When you create a work environment where employees feel valued and supported, your company can minimize the risk of losing valuable talent and avoid the high costs of turnover. Register your team now for our upskilling course called Elevate Your Expertise. This virtual certification series starts on March 5, 2024.

Upskilling and investing in an employee also has the added benefit of improving their overall wellbeing, preventing burnout and stress-related issues. Unlock your employees’ potential and elevate their skills to ensure a successful 2024!

Posted by Giuliana Gabriel, J.D., HR Compliance Director on February 1, 2024

Tags: Employers Report

It may surprise many California employers to learn there is an exception to minimum wage, overtime, and meal/rest requirements for certain salespeople. Yes, you read that correctly. While this may seem “upside down,” for those properly classified as an outside salesperson, the employer doesn’t have to worry about minimum wage and other requirements. Instead, the employee just earns their commission per your agreement. However, it is important to proceed with caution, because this is a very narrow exemption. Moreover, there is a separate category for inside sales subject to their own rules.

So, let’s clear up the sales exemptions:

Outside Sales:

To be properly classified as an “outside salesperson” the employee must be 18 years or older, and customarily and regularly work more than half of their working time away from the employer’s place of business selling items or obtaining orders/contracts for products, services, or use of facilities. (See 8 CCR Section 11010(2)(J).)

The place of business is the employee’s regular place of work. Many employers mess this rule up when they assume the exemption automatically applies to a remote sales worker. That is not the case. For an employee who works from home, their residence would be the place of business. In that case, they would have to spend more than half of their time engaged in selling items or obtaining orders away from their residence-not at home behind a computer screen.

The Labor Commissioner has increased scrutiny on outside salespeople since the rise of the internet and social media. The employee must actually be away from the regular work site at least 51% of the time to meet this exemption. However, for those who do have this arrangement, it can be a huge costs savings for the company!

Inside Sales:

If you have an “inside salesperson” that works at the employer’s place of business (or remotely at home), you may still be able to avoid paying overtime if they satisfy certain requirements. However, these employees must still follow all other requirements for non-exempt employees, including clocking in and out, taking meal and rest breaks, etc. (unless, of course, you can classify the employee as exempt under the administrative, executive, or professional exemptions). As a non-exempt employee, you should always ensure they earning at least minimum wage for all hours worked.

And, while you may pay these employees in commissions, you must still ensure they are being compensated for their rest breaks and any non-productive time, so it is a good idea to establish a base hourly rate for all hours worked, in addition to their commissions.

Here is how the Overtime Exemption Works:

Under Wage Orders 4 (Professional, Technical, Clerical, Mechanical and Similar Occupations) and 7 (Mercantile Industry), inside salespeople are exempt from overtime if they earn at least 1.5 times the California minimum wage (1.5 X $16.00/hour for 2024 = $24/hour) for each hour they work, and at least 50% of their weekly income must come from commissions.

Step 1: In each workweek, the employee must earn more than 1.5 times the minimum wage for all hours worked. This pay may be in the form of wages, salary, commissions, or a guaranteed draw. You cannot count commission earnings from another workweek (i.e., you cannot allocate a large commission payment at the end of the month to previous workweeks in the month). If an inside salesperson has been paid at least 1.5 times the minimum wage for the workweek, proceed to step 2. If not, they are owed overtime.

Step 2: The second part of the test requires that more than half of the employee’s compensation is in the form of commissions (i.e., selling) for each workweek. If the test is satisfied, the employee is not owed overtime. If not, they are owed overtime.

What About Sales Employees who Don’t fit These Definitions?

For example, if you have a sales clerk on staff but they aren’t earning enough in commissions to meet the inside sales exemption, you should start with the assumption that they are treated as any other non-exempt employee. Again, this means they should be clocking in and out, taking meal and rest breaks, and paid overtime. While it is perfectly acceptable to pay them additional commissions per your agreement, remember that commissions affect the employee’s regular rate of pay for calculating overtime!

CEA members can refer to salesperson exemption fact sheet on our HR forms page for additional assistance, or give us a call at 800-399-5331 with your questions. And, remember, any employee earning a commission should execute a signed, written commissions agreement.

Posted by Giuliana Gabriel, J.D., HR Compliance Director on February 1, 2024

Tags: Employers Report

In the spirit of Valentine’s Day, we are covering the concept of “ghosting”-a popular term in dating culture, which refers to suddenly ending all communication and contact with someone.

Ghosting also occurs in the workplace when the company has not heard from an employee in a while. Whether the employee has decided to leave the workplace or perhaps they are dealing with a personal issue, employers are often unsure of how to handle this tricky situation. When an employee ghosts you, when can you process a separation from employment, and how do you get the employee their final check?

If You are Ghosted by an “Unrequited Love” (i.e., Unreachable Employee) Here’s What to Do:

• Make Initial Attempts to Reach Out: First, employers should initiate contact using various forms of communication, such as a phone call, texting, email, and even mailing correspondence. If you have a reason to believe the employee may be dealing with a medical issue or emergency, you may also refer to their emergency contacts in their personnel file. Make sure to document all communication attempts. This shows a reasonableness and good faith effort on the part of the employer, especially in the event the employee was dealing with an emergency or unforeseen circumstance.
• Review Your No Call, No Show Policy: If your communication attempts are unsuccessful, it may be time to review your no call, no show and/or attendance policies. Many companies implement these policies to account for these circumstances, and such policies often indicate when the absence is considered a voluntary resignation (e.g., “if the employee is a no call, no show for three consecutive workdays, it will be considered a voluntary resignation on the close of the third day”). Remember that you may need to make exceptions to the policy in the event you find out the employee was dealing with a medical issue protected under mandatory paid sick leave, CFRA/FMLA, the ADA/FEHA, or another leave of absence. Thus, it is our recommendation to make initial communication attempts before immediately processing it as a voluntary resignation.
• Notify Employee of Next Steps: Although not required, it is also a best practice to send a final warning correspondence, often in the form of a written letter, providing a deadline that the employee must return by to avoid processing a voluntary resignation. If the employee has already exceeded the number of absences allowed in your no call, no show policy, be sure to inform them in the letter as well. Again, attempt to send the correspondence through various communication channels (e.g., email/mail).
• Consider Processing Separation from Employment: If all attempts are unsuccessful, it may be time to process the employee’s voluntary resignation. You can follow up with a letter to the employee letting them know the date of their separation from employment, who they can contact with questions, and instructions for processing final paperwork, picking up their check, and arranging to gather personal belongings. Refer to our digital termination packet, available on our store for purchase.

Hold the Final Check: One big mistake that employers make is that they mail the final check to the employee they have not heard from. However, the California Labor Commissioner does not explicitly authorize employers to mail the final check unless they have received advanced authorization from a resigning employee. As such, if you mail the check, you risk waiting time penalties because you arguably sent it improperly and/or because you did not send it to the employee’s current address.

Instead, it is best to hold the final check at the employee’s worksite and let them know in your correspondence that their check is immediately available for pick up. To avoid a potential waiting-time-penalty claim, make sure the final check is ready by their last day of employment.

In the event the employee never comes to pick up their final check, it is a best practice to hold on to the check for about a year. After that, the employer may send the unclaimed wages to the Labor Commissioner. Learn more about that process on the California Division of Industrial Relations website. This is also  a good reminder to ensure you update employee contact information at least annually to ensure you have their correct phone number, email, and mailing address.

Posted by Giuliana Gabriel, J.D., HR Compliance Director on February 1, 2024

Tags: Employers Report

Unlimited Paid-Time-Off Programs have gained popularity amongst many employers, but is unlimited PTO really the way to go? There are a number of reasons California employers are cautioned against these plans, ranging from employee satisfaction to compliance. If you have an unlimited PTO policy or are contemplating one, make sure you consider the following:

Employee Satisfaction

While unlimited PTO might sound enticing during the recruiting process, many employees become disillusioned by these programs. Statistically, employees who fall under unlimited PTO programs end up taking off less time than those who accrue their benefits. The ambiguities surrounding an unlimited PTO program can often leave people wondering exactly what amount of time taken off would be frowned upon by management. Many employees are skeptical whether it is truly unlimited. And, savvy employees will figure out that most unlimited PTO programs do not have any cash out value should they leave your employment.

Compliance Concerns

In California, unlimited PTO also creates compliance concerns for employers. For example, there is an argument that if PTO is truly unlimited it could turn every leave of absence into a fully paid leave. For example, if an employee goes out on a lengthy family and medical leave (under CFRA/FMLA), or needs to take leave as a reasonable accommodation (under ADA/FEHA), you may be on the hook to pay for the employee’s entire absence.

We also recommend having a separate mandatory paid sick leave policy, to ensure compliance with California’s requirements and to avoid extending all of California’s PSL protections to your unlimited PTO program.

Some things are too good to be true and Unlimited PTO plans for businesses in California may fall into that category. For those employers with unlimited PTO policies, we recommend you consult legal counsel on these potential risks, and also include the strongest policy language possible to carve out protected leaves of absence from your unlimited PTO program.

Do you need additional guidance or assistance with handbook policy customization? Reach out to CEA’s HR experts at 800.399.5331!

Posted by Giuliana Gabriel, J.D., HR Compliance Director on February 1, 2024

Tags: Employers Report

On January 9, 2024, the California Department of Public Health (CDPH) significantly relaxed the rules on COVID exclusion periods, moving away from the 5-day isolation requirement after someone tests positive.

Most COVID-19 workplace rules are found in Cal/OSHA’s Permanent COVID Standard, which went into effect on February 3, 2023, and will remain in effect until February 3, 2025, with record-keeping obligations lasting until February 3, 2026.

However, for certain requirements, such as isolation and quarantine guidelines, Cal/OSHA instructs employers to defer to CDPH or, if applicable, the local health department with jurisdiction over the workplace.

Good News on CDPH’s Changes:

Positive Cases:

• If someone tests positive but has NO symptoms: they are no longer required to be excluded from the workplace.
• If someone tests positive and HAS symptoms: they must stay home for a minimum of 24 hours. They can return only if they satisfy the following: (1) they have not had a fever for 24 hours without using fever-reducing medication AND (2) other COVID-19 symptoms​ are mild and improving.
• Mask whether symptomatic or not: Even if someone is allowed to return to the workplace, everyone who tests positive must mask for a minimum of 10 days when around other people indoors. (Day 0 is the symptom onset date or positive test date if they don’t have any symptoms.) They may remove the mask sooner than 10 days if they have two sequential negative tests at least one day apart.

Infectious Period:

The potential infectious period is 2 days before the date of symptoms began or the positive test date (if no symptoms) through Day 10. The infectious period is used for determining who is a close contact.

Infected persons who end isolation in accordance with CDPH guidance (as noted above) are no longer considered to be within their infectious period. This means that, under current guidance, there is no infectious period for asymptomatic employees. The infectious period may vary for symptomatic employees, depending on when they meet the criteria to return to work.

Close Contacts:

• If someone has COVID-19 symptoms following close contact: they should test and mask immediately.
• If someone does not have COVID-19 symptoms following close contact: CDPH still encourages testing, and masking around higher-risk individuals.

CEA is Here to Help you!

CEA members have access to our COVID-19 Exposure Tool Kit to help walk you through the required steps, and you may give us a call for further clarification at 800.399.5331

Posted by Giuliana Gabriel, J.D., HR Compliance Director on February 1, 2024

Tags: Employers Report

Many out-of-state employers are surprised to learn that California employers cannot prevent former employees from working for competitors. Non-compete agreements in California are generally not enforceable, as they are prohibited by California Business and Professions Code section 16600. Many other states will enforce such agreements if they are reasonable (based on length of time, geographic boundaries, etc.).

New California Laws for 2024

Now, a new California law for 2024, AB 1076, requires employers to notify certain current and former employees that they entered into a void non-compete agreement, by February 14, 2024. Specifically, employers must send a written, individualized communication to all current and former employees who were employed after January 1, 2022 and entered into a non-compete clause or agreement (not subject to an exception). The agreement must notify the employee the clause and/or agreement is void, and it must be sent to their last known address and email address. Violations constitute an act of unfair competition under the Business and Professions Code.

With less than two weeks away from the Valentine’s Day deadline, it is important that employers audit their agreements and contractual provisions now, and begin preparing the notices, if applicable.

Of note, another new law, SB 699, now allows current, former, and prospective employees to sue if they entered into a void non-compete agreement or the company attempted to enforce one. Previously, there were no monetary consequences for California employers who executed unenforceable non-competes. Rather, courts would just find them unenforceable if challenged. Now, employees can sue for monetary damages and their attorney’s fees. Furthermore, SB 699 provides that these protections apply regardless of where and when the contract was signed, including if the employment was maintained outside of California. This covers:

• California-based companies who enter into non-compete agreements with California employees or out-of-state employees
• Companies outside of California who enter into non-compete agreements with California employees

California employers may still enforce reasonable confidentiality, intellectual property assignment, and non-disclosure agreements.

So remember, by this Valentine’s Day, notify workers who entered into non-competes that they don’t have to “commit” to you-yes, pun intended.

What else makes California unique? Learn more on our What’s Different in California page for employers, and reach out to us for assistance at 800.399.5331.

Posted by Kim Gusman, President & CEO on February 1, 2024

Tags: Employers Report

In last year’s February’s newsletter I wrote about how Valentine’s Day is a good time to show those who you care about some love, and also a good time to show your employees how much you value and appreciate them. I referenced a great book by authors Eric Mosely and Derek Irvine, called Making Work Human, How Human Centered Companies are Changing the Future of Work and the World.

In the book, Mosely and Irvine explain that successful leaders TALK with employees, THANK them for all that they do and CELEBRATE with them throughout the year. And, they teach leaders that team building happens organically when we make memories with our employees and mark life’s moments together.

Making the Extra Effort

I still believe in that book and in building human-centered companies, but this year I’m taking it one step further-like most improvements in life, you’ve got to put more into it if you want to get more out of it. Whether it’s your personal relationships, your fitness routine (especially your fitness routine!), or your workforce, you’ve got to invest more time, effort, money, energy, and/or tools into those things that are important to you if you want to see better results.

So as leaders, in addition to thanking, talking and celebrating with our employees, how can we take things one step further? Here’s your answer-invest in your employees with Upskilling. While not a new concept, Upskilling is the process of learning new skills or of teaching workers new skills. Some employers put this on the back burner during those COVID years.

Do you offer additional training or resources to help your employees advance in their careers? Upskilling can take many forms, such as taking online courses, attending workshops, conferences, or participating in on-the-job training programs. The vast majority of employees want more education on the job, and they tend to stay longer with employers who invest in them.

In 2022, we created a Leadership Course (L.E.A.D) specifically for upskilling the leaders of today and tomorrow. This year, we are proud to launch another upskilling certification series beginning March 5, 2024 called Elevate Your Expertise: An Upskilling Training Series. Perfect for your entire staff, this class is held virtually, two hours each week for four weeks. Register your team today on some of the most common training topics requested by employers:

• WEEK 1 (Tuesday, March 5): Workplace Communication: Communicating Confidently and Effectively
• WEEK 2 (Tuesday, March 12): Mastering Team Collaboration in the Workplace
• WEEK 3 (Tuesday, March 19): Analytical Thinking and Problem Solving in the Workplace
• WEEK 4 (Tuesday, March 26): Self Leadership: Bringing Your Best Self to Work

Life moves fast and technology changes even more quickly. As technology and the economy evolve rapidly, the skills needed in the job market are also transforming. Upskilling is a win/win and who doesn’t love that?! It will help your company stay competitive and increase job satisfaction for your workforce!

Happy Valentine’s Day!

Posted by California Employers Association on January 1, 2024

Tags: Employers Report

This month we’d like to introduce you to two-thirds of CEA’s amazing operations department: Andrea Frederickson, Controller and Jennifer Guerrero, Operations.

Andrea Frederickson, Controller, CEA

1. How long have you been with CEA?

4 years.

2. What was your first job?

I worked at a grocery store in the bakery and ice cream shop.

3. Where did you grow up?

Utah and Colorado, but I have lived most of my adult life in Texas.

4. What is something most people don’t know about you?

I play the piano and am learning the cello.

5. What was your favorite class in college?

It’s a toss up between humanities and a furniture upholstery class; that was a lot of fun.

Jennifer Guerrero, Operations, CEA

1. When you are at work, how do you motivate yourself?

Lots of coffee!

2. What advice would you give to someone who is just starting their career?

Be open to soak in everything that comes at you. Be it good or bad…you will learn from every moment.

3. What was your first job?

Retail Associate at Nordstrom

4. Where did you grow up?

San Francisco, CA

5. What is your favorite quote, motto, or words you live by?

Always have a smile on your face when answering the phone. That person on the other end may need one.

Posted by Kim Gusman, President & CEO on January 1, 2024

Tags: Employers Report

Just when you think people are getting smarter, here’s a crazy story that goes from bad to worse. I am calling this “three strikes and you are sued!” Weis Markets recently fired an employee when she refused to participate in the company’s employee assistance program (EAP), and now they are being sued by the U.S. Equal Employment Opportunity Commission (EEOC). Read on to see the three mistakes made that resulted in a lawsuit.

• Mistake Number One:  The EEOC said a supervisor at Weis Markets’ Mifflintown, Pa., store made frequent sexual comments in the workplace, often winked at the employee, kissed her without consent and made statements indicating his propensity to commit violent acts. After the employee reported the sexual harassment and the supervisor admitted some of his conduct, the company failed to take reasonable corrective action against the supervisor.
• Mistake Number Two: After the employee’s sexual harassment complaint, the company told her that co-workers had complained about her, and as a result, she would be required to participate in the EAP. A formal referral is not mandatory and does not result in disciplinary action for noncompliance. In this case, a company official confirmed to the employee that the referral was to determine whether she would be placed on disability leave.
• Mistake Number Three: When the employee refused to comply with the mandatory EAP referral, Weis Markets suspended her without pay and ultimately fired her. The EEOC stated that the alleged conduct violates the Americans with Disabilities Act (ADA)-which prohibits employers from requiring employees to undergo medical examinations or answer questions that are likely to reveal whether they have disabilities, unless the employer can show the examinations or inquiries are job-related and consistent with business necessity. The ADA also prohibits retaliating against employees for opposing illegal practices, such as requiring someone to use an EAP.

Time for a Lawsuit

In October, the EEOC sued Weis Markets for “Sexual Harassment and Unlawful Use of Employee Assistance Program” charging that the grocery chain subjected the employee to Sexual Harassment and then fired her for refusing to cooperate with an illegal medical exam. “Employees have a right under the ADA not to be forced by their employers to participate in medical exams and inquiries that are not job-related and consistent with business necessity,” said Jamie Williamson, the EEOC’s Philadelphia district director. “The EEOC will not permit employers to interfere with that important ADA right or to retaliate against employees who exercise it.”

More About EAPs

An employee assistance program (EAP) is a voluntary, work-based program that offers free and confidential assessments, short-term counseling, referrals and follow up services to employees who have personal and/or work related problems. Traditionally, EAPs assisted workers with issues like alcohol or substance misuse; however, most now cover a broad range of issues such as child or elder care, relationship challenges, financial or legal problems, wellness matters and traumatic events like workplace violence. These programs are free for employees and offered by stand-alone EAP vendors or providers who are part of comprehensive health insurance plans.

EAPs that offer medical benefits such as direct counseling and treatment rather than just referrals for counseling and treatment are regulated under ERISA and subject to COBRA. Generally, EAPs are confidential, meaning the employer won’t find out about any information employees discuss with the EAP, such as medical diagnoses or family problems. EAPs in California are subject to the federal Health Information Portability and Accountability Act (HIPAA). Under HIPAA, an employer cannot require an employee to disclose personal medical information.