Amnesty Program Misclassifying Employees

On September 21, 2011 the IRS started a new program that allows employers to correctly classify those people who were classified as independent contractors (incorrectly) to employees with minimal financial impact.

There are restrictions and you still owe money for clearing up your records but this is something you should look into if you have any doubt that anyone working for your organization may be misclassified. If found to be misclassifed California's SB 459 has just increased the penalities to where they now range from $5000 to $25,000 per violation.

2012 California New Employment Laws

AB 1236: Prohibits the State or political subdivision from requiring an employer to use the federal E-Verify, except when required by federal law.

AB 469: Adds new penalties for employers who violate wage laws. There are also new notice and document retention rules within the new legislation.

SB 459: Prohbits the willful misclassification of an employee as an independent contractor.

AB 887: Adds gender identiy and gender expression to the EEO areas of protected class.

SB 559: Prohibits discrimination based on genetic testing results.

SB 299: Extends company sponsored insurance premiums to the full length of pregnancy disability leave, not just the 12 weeks covered under FMLA.

AB 22: Prohibits employers from getting credit reports on candidates unless the workers being sought will work in a statuorily enumrated position.

NLRB: Don't forget that the new NLRB poster must be posted on your employer bulletin boards by January 31st.

Please contact our office for assistance with any of these new regulations.

Non-Ca Employees Bound by CA Labor Code

June 30, 2011 the California Supreme Court ruled that even though a company's employees live and work in another state when they come into California and work the employer MUST follow California Labor Code regulations The main one that this will effect most often will be overtime and rest/meal periods.

If an employee works over 8 hours in a day they get time and a half for hours 9, 10 and 11 and double time at hours 12 and up. Even if they only work the one day in the week. If they work over 40 in a week they get overtime as well.

In California if an employee works 6 hours or more they must get 2 10 minutes breaks and a 30 minute lunch break, away from their work station, mid-way of their shift. Example: Starts at 8 at 10 a.m. they get a break, 12 to 12:30 is lunch and 3 to 3:10 is a break. Failure to provide the breaks and lunch could result in a 1 hour penalty for each.

If you have questions or concerns regarding how to implement California regulations please contact our firm, we will be happy to assist you.

No Match Letters

The Social Security Administration is looking to send out letters indicating that their records do not match the records that the employer has sent them. When you get a no match letter please check your payroll records to make sure there isn't a typo that has caused the discrepancy. If everything seems to match what you were given by the employee meet with the employee and explain that you have received this information and give them between 60 and 120 days to straighten out the issue with the local social security administration. They need to bring to you, on SSA letterhead, information that shows the social security number you have is correct. Keep this information in the employee's HR file.

If the employee cannot bring in confirmation that the social security number is their number you may need to terminate their employment. I recommend getting with your legal counsel before taking this step and making sure you have covered all of your bases.

DOL's Phone App

The Department of Labor is making it easier for employees to file complaints against their employers for unpaid or underpaid hours of work. They have developed a cell phone app that will track employee hours for them and calculate what they should be getting in pay.

If the employer is not payingthe proper amount the employee can go to the DOL and file a lawsuit and use this app to enter the amount of money owed to them.

To counter this make sure your timekeeping systems are in place and that ALL employees are using them. Non-exempt employees MUST get (in CA) 1 to 2 10-minute breaks per over 6 hours of work and a 30 minute lunch break AWAY from their work station. There are penalties for not allowing employees to get these required breaks.

If you are not sure your timekeeping systems are recording time properly please contact our office and we will be happy to review your situation.

760-347-6496

Uniforms

California Labor Code 400 and 410 -- If you require employees to wear a specific uniform you may be responsible for paying for the uniforms and their maintenance. Uniforms includes apparel and accessories of distinctive design or color. Employers must maintain or provide a maintenance allowance for uniforms requiring dry cleaning or ironing or any special laundering. California Labor Code Section 2802(a) outlines the additional obligations on California employers.

If you require employees to wear certain clothing that is distinctive it might be considered a uniform. Please check the Labor Codes above and make sure that you are following the guidelines.

If you would like assistance in this area please do not hesitate to contact us.

Potential Legislation under Gov. Brown

Several Assembly Bills were not successful under Governor Schwarzenegger, however, they will probably become priorities once the budget situation is under control. It is important for employers to understand these bills and let the members of your legislature know your thoughts on these bills. Per SHRM Magazine March 2011 the following bills are likely to come up again during Gov. Brown's term.

AB3063 - would have codified additional restrictions on pre-employment inquiries regarding criminal convictions.

AB 2340- would have required employers to provide paid bereavement leave of up to three days.

The legislature in several past sessions has sought to expand the California Family Rights Act(CFRA) to smaller employers - those with 25 employees instead of 50.

AB 1881 - would have doubled liquidated damages that can be assessed against employers for violating teh state's minimum wage laws.

AB 2187 - would have imposed criminal sactions for an employer's failure to pay all wages owed to a departing employee within 90 days of the employee's last day of work.