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.

IRS 2011 Standard Mileage Rates

The rate starting January 1, 2011 is 51 cents per mile.

Please review your reimbursement policies. If it varies according to the IRS rate you need to double check your reimbursement calculations to include this 51 cents. Also, now is a good time to review your policies on regulations for when employee's drive on company business. Be sure you include statements that driving and speaking or texting on a cell phone is prohibited while driving and what the results can be if they violate this policy.

It is also a good idea to track the insurance policies that employees have to make sure they remain active. Participating in the State of California's DMV Pull Program is another way to keep track of the employee's driving record. These steps can help should an employee be involved in a horrific accident while driving on company business to show you were taking steps to make sure your employees are responsible drivers.

Our firm can assist you in the preparation and implementation of these policies.

ICE Is Cracking Down

In January 2011 the Department of Homeland Security issued a new I-9 manual which explains how to process I-9s. If you haven't audited your I-9 documents recently you need to do that to make sure that they are all done correctly. If not the manual will explain how you can correct the I-9s. I-9's that are not done correctly can cost you up to $1100 per form that isn't done correctly.

You can find the I-9 manual at http://www.uscis.gov/files/form/m-274.pdf

Our firm can conduct an audit of your I-9 forms and help you confirm they are in compliance.

OSHA 300A needs to be posted

Your OSHA 300A log has to be completed and posted on your employee bulletin boards from February 1st through April 1st each year.

Please make sure you have completed this form and also have your OSHA Log 300 completed. If OSHA ever comes in and asks to see them, and they aren't up-to-date there is a large fine associated with this non-compliance.

Our firm can assist you in completing these forms if you need help.

Are Your Employees Stressed?

Due to the reductions in force that many employers have had to do, work hours and stress levels have increased in corporations. When employees are stressed they become ill more often and use more insurance benefits.

If you have an EAP program it would be beneficial to speak with them about how to conduct programs that reduce stress in the workplace. These programs can also help employees with stress reduction techniques when they feel the pressure increasing.

Everyone feels stress in their life, some good (having a baby, getting married, etc.) and some not so good (illness, death, heavy workloads). When you equip your employees with techniques to handle these stressful times you will find a happier and more productive workplace.

Stray Remarks

The Supreme court is allowing employee's stray remarks to be entered into lawsuits from employees. There was a case where an older man was terminated for poor performance and sued his employer for age discrimination. He stated that employees had made fun of his age, called him a fuddy duddy, etc. The courts stated that these comments, even though from non-decision makers, held with other evidence were admissible in the case.

Obviously you cannot hear everything your staff members are saying. Trying to do so would create such an oppressive environment that it would become unproductive. However, in order to prevent these stray remarks management can foster a work place that is free of such comments. When comments that are inappropriate are overheard you need to speak to the employee, in private, and explain how the comment is inappropriate and doesn't fit your environment.

Truly having an open door policy where employees can come to their supervisor and discuss any issues is critical to preventing an atmosphere where employees speak negatively about their co-workers. Also, as a manager being strong in dealing with inappropriate behaviors, such as absenteeism, tardiness, incomplete work, missed deadlines, is critical to keeping a harmonious work envirnoment for your staff.

Our firm can help train your management staff on the critical skills to be a successful member of management.

New Year - Time to check compliance

With the new year now is the time to check your general HR areas to make sure that you are in compliance with your State and Federal regulations. You should be checking your bulletin boards, recruiting procedures, termination procedures, handbooks, job descriiptions, etc.

The Government is cracking down on employers, especially in California and making sure you are doing everything to be in compliance is important.

Our firm can conduct an HR audit for you to let you know what areas and let you know how you are doing in the area of compliance.

Happy New Year!

Senate Bill 1254: Workers' Comp Stop Orders

Workers' Compensation is a critical part of doing business in the United States and most especially in the State of California. If you are a contractor, licensed or unlicensed and found to be without workers' compensation coverage (per California regulations) you could get a Stop Order from the registrar of contractors.

If issued a Stop Order you have to stop all work immediately and pay your employees for lost wages, up to 10 days, until you get the required workers' compensation insurance.

If you do not follow the stop order it is considered a misdeamor with up to 60 days in county jail or $10,000 fine.

Remember: You must post the "notice to employees" poster in a conspicuous place at the work site. This poster provides employees with information on your workers' compensation coverage and where to get medical care for work injuries. Specific requirements are contained in sections 3550-3553 of the California Labor Code. Failure to post this notice is a misdemeanor that can result in a civil penalty of up to $7,000 per violation. Contact your insurer to get the posting notice and the required information that must be included on it. You may also download a poster from the forms page of the DWC Web site.

Department of Labor Cracking Down on Unpaid Internships

In reading my HR materials this month it has been repeated several times that the DOL is suing more and more employers because of unpaid internships. If you have an intern or want an intern to work at your Company you must make sure that you follow the DOL's guidelines. There are six criteria that MUST be adhered to if you want to have them at your company without pay. You will find the six items listed on the DOL website or contact my office for guidance.

If key to an intern is that the person is STILL in college and is working through the career center on the position PLUS the person will get some college credits if they successfully complete the internship. There is paperwork from the school up front on what the intern will do and learn and at the end to evaluate their performance. If the person has graduated they are NOT an intern.

Happy New Year!

Merry Christmas and a Happy New Year

We want to thank all of our loyal clients for your business in 2010. We hope that 2011 is a year of growth and stability for all of you.

We look forward to helping you with your HR needs during the year.

Merry Christmas,

W-2 Forms Health Care Reporting Made Optional

The IRS, in October, issued a notice (2010-69) which states that regarding the cost of coverage under an employer-sponsored group health plan that is effective next year made this reporting optional for 2011 W-2 forms. There are suppose to be additioanl guidelines coming out before the end of the year to give further guidance on this issue.

For details on the notice please go to: http://www.irs.gov/pub/irs-drop/n-2010-69.pdf

New Paid Leave for Organ Donors

Governor Schwarzenegger has signed into law SB 1304 which states that employers with 15 or more employees will have to provide up to 30 days of paid leave per year to an employee for purposes of donating an organ, and up to 5 days of paid leave per year to an employee for purposes of donating bone marrow.

If you have questions or need help putting together this leave program please contact Dzuro and Associates at jdzuro@msn.com.

Joan

Remember Tax Breaks When Hiring Unemployed

If you have hired someone who has been unemployed you may be eligible for a tax break. Besides helping the economy by hiring someone you may receive a benefit yourself.

Celebrating our Sixth Anniversary!

A huge thank you to all of our wonderful clients for helping us be successful these past six years!

It has been such a pleasure to meet such wonderful people and learn about a diverse number of industries. We are looking forward to many more years of helping everyone succeed as our economy starts to recover.