HR Watchdog

Alternative Workweeks - Did you know?

CalChamber has written articles recently in the Alert publication about Alternative Workweeks. If you do not receive the Alert -- sign up for it so you can keep up on the policy unit's hard work on behalf of California employers.

If you have already implemented an Alternative Workweek schedule - make sure you understand the following, which can be found in section (B) of your wage order.

• All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (11/2) times the employee’s regularrate of pay.
• All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee’s regular rate of pay.
• Any alternative workweek agreement shall provide for not less than four (4) hours of work in any shift.
• An employer, at the request of the employee, may substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime.
• No hours paid at either one and one-half (11/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation.
• If an employee working under an alternative workweek agreement is required by the employer to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (11/2) times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee’s regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours.

So, make sure you are following the rules before and after implementing an Alternative Workweek!

NEW, REQUIRED I-9 Forms In English and Spanish

The USCIS has released new I-9 forms, effective 6/16/08. Read the Press Release. Download the English form from the CalBizCentral Web site to use for your next new hire. Regarding use of the Spanish form, the USCIS notes:

The Spanish version of Form I-9 may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.

IRS Mileage Rate Increase!

The IRS announced today that, effective July 1, 2008 - December 1, 2008, the mileage rate will be 58.5 cents per mile - an increase of 8 cents from the current 50.5 cents.

Read the press release for more information.

U.S. Supreme Court and 9th Circuit speak

The media was busy last week covering some federal-level decisions from the U.S. Supreme Court and the 9th Circuit here in California.

The U.S. Supreme Court confirmed the 9th Circuit precedent that, in Age Discrimination in Employment Act cases, the employer has the burden to prove their reasons for termination were lawful despite any disparate impact on employees over the age of 40. See Meacham v. Knolls 2008 U.S. LEXIS 5029 (June 19, 2008).

The Supremes also ruled that states may no longer restrict employers’ right to communicate with their employees about unionization. CalChamber issued an article covering this case last week.

The 9th Circuit issued a decision finding employees have a right to privacy over information held on third party servers -- as opposed to company owned and controlled servers. The employer in this case received information from a third party vendor that employees had transmitted through company-owned equipment. The court said the vendor should not have released that information to the employer. See Quon v. Arch Wireless Operating Company 2008 U.S. App. LEXIS 12766 (June 18, 2008).

Details regarding cases such as these, as well as helpful "What Should You Do?" information is provided by CalChamber through the bi-weekly newsletter HRCalifornia Extra. If you are not currently a subscriber, sign up now -- it's free. We will also be updating the privacy policy available to our members in light of the Quon decision. 

Independent Contractor or Employee?

Misclassifying employees as independent contractors can have a huge financial impact on a company. Making a worker an independent contractor based on the worker's request, or for your convenience are insufficient reasons to establish independent contractor status. So, how can CalChamber help you determine the best way to determine a workers' status? Beyond our policy team who lobby the legislature every day to ensure employer rights are protected in all areas, including independent contractor issues, we have a number of resources available to you.

On www.hrcalifornia.com, we have created an independent contractor wizard to help our members wind through the series of legal requirements associated with determining a workers' status. Be prepared with information detailing what kind of work will be performed, where it will be performed, how assignments will be given, how the person will be paid and so forth. The wizard will help you define whether you need more information or what the workers' appropriate status should be.

You can also find legal definitions, case law, forms, checklists and new articles regarding independent contractor status under the HR Topics section on Hiring.

It is important to review all of this information and consult with legal counsel when hiring workers you may consider to be independent contractors because misclassification is an expensive mistake you do not want to make.

Same Sex Marriage Starts Today - Some FAQs

How will this impact your business? In reality, very little. The California Supreme Court case simply says that people of the same gender can get married, get marriage licenses and are afforded the same rights and protections under state law as people of different sexes who marry. California law already gives registered domestic partners those rights. Here are some questions we have received:

Question: Will registered domestic partners automatically become married?
Answer: No.

Question: Do I need to update my employee handbook?
Answer: Now would be a good time to review your handbook to ensure your company does not refer to married people by different genders only. I would recommend referring to people as spouses rather than husband and wife.

CFRA has not been amended in light of this court ruling, so your CFRA policy will not change.

Question: Do we have to recognize same sex marriages and treat them the same as different sex marriages for purposes of offering benefits, etc.?
Answer: Yes.

It is always important to keep in mind your discrimination, harassment and retaliation policies. Same sex marriage can be a sensitive and/or heated issue - such discussions in the workplace should not be encouraged except to the extent it relates to the work your employees are expected to perform. Now is a good time to provide additional training to all employees.

Alternative Workweeks Because of High Gas Prices?

High gas prices are impacting everyone's bottom line - even employers. Employee productivity and distraction as a result of the "pain at the pump" is creating HR issues such as requests for telecommuting and alternative workweeks.

Be prepared - CalChamber has created toolkits to give our members the information you need and provide employees with proper guidance for telecommuting and alternative workweeks.

Bills Becoming Law

Do you receive information from companies encouraging you to prepare to comply with laws that have "passed?" Be sure you know what "passed" means in the world of the California or federal legislatures.

A bill must survive committee(s) and be approved by both houses (the Assembly and Senate in California, the House and Senate in Washington, D. C.). After this, it must go to the Governor or President to get signed or vetoed.

In California, the Governor's signing of a bill typically happens in September or October and, unless the bill is specified as an "urgency statute", the law goes into effect January 1 of the following year. Urgency statutes are effective upon the date of signing.

So, if you are receiving information from companies saying that California law has changed, be wary, because the law likely has only gotten out of committee or one house of the legislature. CalChamber always releases information regarding new laws, either on the HR Watchdog blog, or in the Alert or through HR California Extra. You can sign up for the newsletters on our Web site.

New DE 34 Form

Employers must report new employees to the EDD within 20 days of the first work date. The EDD has released a new DE 34 form.

Genetic Information Nondiscrimination Act

On May 21, 2008, President Bush signed HR 493 - the Genetic Information Nondiscrimination Act of 2008 - into law. Many are touting this bill as the first civil rights legislation in 20 years. The law prohibits insurers and employers from using genetic information to discriminate against insureds or employees. However, for California employers and insurers, this should not materially change how you run your business. If you are concerned about how this law may impact your company - especially if you have offices outside of California - be sure to contact legal counsel.

Important! Heat Illness Teleconference

The recent heat wave that hit California resulted in two deaths. It is imperative that employers with outdoor workers are following heat illness requirements and continue to train employees, give them time to acclimate to hot weather conditions, and ensure they rest and drink water hourly. In light of this heat wave and summer being around the corner, Cal/OSHA is activating the heat illness prevention network and wants to publicize an upcoming teleconference call. The Chamber encourages employers to participate.

Heat Illness Awareness Teleconference

The impact of the recent heat wave on California workers will be the subject of a conference call scheduled by the state Department of Industrial Relations for May 29 at 10 a.m.

Call (866) 620-8248 and use participants pass code 5437850, followed by the “#” sign. Speakers will be John Duncan, state director of industrial relations, and Len Welsh, Cal/OSHA chief.