We’ve all been there. It’s a busy afternoon. You receive an employee complaint via email. You think to yourself, “What do I do now? ” The short answer: If there are key facts you do not know, you need to investigate the complaint. Once an ...
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What's New In Employment Law

Some Thoughts on Internal Workplace Investigations

We’ve all been there. It’s a busy afternoon. You receive an employee complaint via email. You think to yourself, “What do I do now?” The short answer: If there are key facts you do not know, you need to investigate the complaint.

Once an employer is on notice of potentially improper work-related conduct, they have an obligation to conduct a prompt, thorough, and impartial investigation, and to take prompt and effective corrective action. In fact, the failure to promptly investigate can form a basis for a legal claim, so it is important that employers and supervisors know that there are no “off-the-record” complaints.

Although it may be tempting, employers should never determine that a complaint is without merit until they have investigated. Of course, not all investigations look alike – sometimes, it may be a quick conversation to resolve a misunderstanding. For example, if the allegation is that an employee circulated an inappropriate email, the investigation may be as simple as reviewing the email and confirming the sender’s identity. On the other hand, a complaint of a “hostile work environment” often requires numerous witness interviews. If the evidence is clear or the employee has already admitted to the alleged conduct, though, there may be no reason to do an investigation.

Finally, investigations should never end with a finding of “inconclusive,” or “it was a he said/she said.” Just like an umpire in a baseball game, investigators must call a ball or strike. The good news, though, is that the standard is only “more likely than not,” rather than “beyond a reasonable doubt.” And, even if the investigator ends up making the wrong call, there is no risk of liability if the investigation was conducted appropriately.

Need help? Join us for our upcoming three-day internal investigation intensive workshop, “Conducting Effective Internal Investigations.” This program covers investigation fundamentals and includes a mock investigation and interactive session on writing effective investigation reports. Click here to learn more and register.

The post Some Thoughts on Internal Workplace Investigations first appeared on Shaw Law Group.

      
 
California Paid Sick Leave for Part-Time Employees

One of the most common questions employers ask us about California’s paid sick leave law is how it applies to part-time employees. Below we identify the three most common methods of calculating paid sick leave and address how they apply to part-time employees.

Accrual Method (1:30)

Employers may have a policy in which employees accrue one hour of sick leave for every 30 hours worked. This policy applies equally to part-time and full-time employees.

Accrual Method (Alternative Rate)

Employers may have employees accrue paid sick leave at a rate other than one hour for every 30 hours worked, but must meet certain benchmarks to make that alternative accrual valid. Employers using an alternative accrual rate must ensure that employees accrue 24 hours or three days of sick leave by the 120th day of the year and 40 hours or five days by the 200th day.

California’s Department of Industrial Relations (“DIR”) recently updated its “Frequently Asked Questions” to clarify that these benchmarks do not apply to employers using an accrual rate of one hour paid sick leave for every 30 worked. The benchmarks “are set up as a measure for employers who use other accrual methods so that the plans meet certain minimums. The measure assumes full-time employment.” In other words, these benchmarks will be difficult to meet with part-time employees, so the DIR “assumes” employers use alternative accrual rates for full-time employees.

Lump-Sum or Frontload Method

Employers may provide the full amount of leave (five days or 40 hours, whichever is more) at the beginning of a designated 12-month period. The primary benefit of this method is the ease of administration, because there are no carryover or accrual cap issues. However, employers using this method may not pro-rate the amount of sick leave for part-time employees, who are entitled to 40 hours of paid sick leave even if they only work 20 hours per week, for instance.

Employer Take-Aways

Employers may use different methods of providing paid sick leave to part-time and full-time employees. For example, employers may opt to use the lump-sum method for full-time employees and the 1:30 accrual method for part-time employees. Fortunately, the DIR has now confirmed that employers may utilize the 1:30 accrual method without worrying about the benchmarks that would be quite cumbersome for part-time employees.

For more information about California’s paid sick leave requirements, read our October 9, 2023, blog post about “California’s Expanded Paid Sick Leave” and our November 6, 2023, blog post with “Answers to Common Paid Sick Leave Questions.”

The post California Paid Sick Leave for Part-Time Employees first appeared on Shaw Law Group.

      
 
Timekeeping Tips in Honor of Daylight Saving Time

For reasons that we will never quite understand, daylight saving time is once again upon us. In the spirit of mourning the hour all lost this weekend, here are our top 10 timekeeping tips for employers:

  1. Non-exempt employees must be paid for every minute they work. California law has no “de minimis” exception.
  2. Do not round employees’ work time for payroll purposes. The California Supreme Court will soon decide once and for all whether employers are permitted to use neutral time-rounding practices, but regardless of that decision, it is a practice fraught with risk.
  3. Ensure that non-exempt employees’ time records reflect their actual hours worked. Timecards should not be estimated, rounded, or completed based on scheduled hours. If an employee starts work at 8:03, then the time card should show “8:03” as the start time (unless you round the time, which we do not recommend).
  4. Non-exempt employees should clock in and out for meal periods – but not for rest periods.
  5. Employers should require employees to verify the accuracy of their time entries every pay period.
  6. Employers should only adjust an employee’s time records if there is a software failure or an employee forgot to enter their own time. All such adjustments should be verified in writing by the employee.
  7. The rules for telework are the same as in-office work – non-exempt employees must clock in when they start to work and clock out when they stop working.
  8. Non-exempt employees must not work “off the clock.” What do you do with the employee who insists on checking and responding to emails after hours? Pay them, and address the issue through performance management.
  9. Do not allow employees to falsify their timecards. Ever.
  10. Require non-exempt employees to enter their time daily, and discipline those who refuse to do so.

In unrelated news, and as a bonus for those of you who have read this far:

The CDC has modified its COVID isolation recommendations for the first time since 2020.  They now align with CDC guidance addressing how to avoid transmitting flu and RSV. So, positive COVID-19 cases no longer need to isolate for five days. You’re welcome.

The post Timekeeping Tips in Honor of Daylight Saving Time first appeared on Shaw Law Group.

      
 
Cal/OSHA’s Model Workplace Violence Prevention Plan and Guidance is Here!

Hats off to Cal-OSHA!  They are WAY ahead of schedule…

As you probably know, by July 1, 2024, most California employers must establish, implement, and maintain an “effective” workplace violence prevention plan (“WVPP”) – read our previous blog post on the new law here.

To help employers meet Senate Bill (“S.B.”) 553’s WVPP requirements, Cal/OSHA recently published a model WVPP. Employers are not required to use the model WVPP, and may create their own, use another WVPP template, or incorporate workplace violence prevention into their existing Injury and Illness Prevention Program.

Cal/OSHA’s model WVPP is written for a “broad spectrum of employers,” so employers must revise it to address the specific needs of their workplace. Of course, using the model WVPP does not ensure compliance with S.B. 553’s requirements, which include more than just the WVPP.

Cal/OSHA also published “Fact Sheets” for workers and employers about workplace violence prevention for “general industries (non-health care settings)” and “agricultural operations.”

Cal/OSHA’s model WVPP and Fact Sheets are available here.

Feeling overwhelmed? We’re here to help! Shaw Law Group is offering a flat fee package to help employers comply with the new law, which includes a customized WVPP, templates and compliance-related documents, and workplace violence prevention training for employees. Please contact us at info@shawlawgroup.com for more information!

The post Cal/OSHA’s Model Workplace Violence Prevention Plan and Guidance is Here! first appeared on Shaw Law Group.

      
 
Exemptions Go to the “Bread” Winners!

Many of you probably have heard about the FAST Act.  We can’t resist responding when employment law makes headlines, so below we dig into the FAST Act and its exemptions, and also explore the common link between legislative exemptions and well-funded lobbying groups.

The FAST Act

Assembly Bill 1228 repealed and replaced 2022’s FAST Act, and established a $20 per hour minimum wage for fast food workers, effective April 1, 2024. The bill also created a Fast Food Council to establish an hourly minimum wage for fast food restaurant employees, subsequently increase that minimum wage, and establish requirements, limitations, and procedures for adopting fast food restaurant health, safety, and employment standards.

A “fast food restaurant” is defined as a limited-service restaurant that is part of a national fast food chain. A “national fast food chain” means a set of limited-service restaurants consisting of more than 60 establishments nationally that share a common brand, or that are characterized by standardized options for decor, marketing, packaging, products, and services, and which are primarily engaged in providing food and beverages for immediate consumption on or off premises where patrons generally order or select items and pay before consuming, with limited or no table service.

FAST Act Exemptions

The law contains two exemptions. First, a restaurant located and operated within a “grocery establishment” is not considered a “fast food restaurant.” A “grocery establishment” means a retail store that is over 15,000 square feet in size and sells primarily household foodstuffs for offsite consumption. Also, a distribution center owned and operated by a grocery establishment and used primarily to distribute goods to or from its owned stores is a “grocery establishment,” regardless of its square footage. A grocery establishment does not include a retail store that has ceased operations for 12 months or more. (Cal. Labor Lab Code § 2502.)

A ”fast food restaurant” also does not include bakeries that produce and sell bread on site, so long as the bread is a stand-alone menu item. However, this exemption does not apply to purveyors of just any kind of bread. The bread must weigh one-half pound or more after cooling. (Yes, really.) This exemption only applies to establishments that have continuously operated such a bakery since September 15, 2023.

Exemptions and Legislative Compromises

Why include a “bread” exemption in the Fast Act?  Exemptions like this one are not uncommon.  Every piece of legislation is a compromise, of course. 

As a recent example, Assembly Bill 5 made it nearly impossible to classify workers as independent contractors in California – subject to a lengthy list of exemptions. Some of the exemptions seem to address real-world challenges, such as the business-to-business exemption. Others seemed to be the result of well-funded and successful lobbying groups – e.g., the exemption for lawyers and many insurance professionals.

Just as AB 5 continued to add legislative exemptions in the years following the bill’s enactment, we may see similar activity related to the FAST Act. For example, the recently introduced AB 610 seeks to exempt certain unionized sectors from the FAST Act. We’ll have to see what happens…

Stay tuned!

The post Exemptions Go to the “Bread” Winners! first appeared on Shaw Law Group.

      
 

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