Good morning, welcome to my latest Monday Morning Briefing. We are post Labor Day, and even though we are finally past this heatwave, it feels like September is coming in hot. I am leaving once again, this time for a short but true vacation out of the country, so I will be gone next Monday. But there is a lot going on for today’s Briefing, so I wanted to make sure I got this week’s edition out to you timely.
COVID MAY BE WANING, BUT CALIFORNIA COVID PAY LIKELY TO STAY THROUGH THE END OF 2022
As of today, I am still hearing this is “likely,” and when this many sources say it’s likely, you know it’s happening.
Right now, our California Supplemental COVID pay is due to expire at the end of September, as it has the last two years. But rumor has it that the Governor wants to extend SPSL to the end of the year. So now you know what I know. I will let you know when it becomes official, meanwhile, I would plan on it.
CALIFORNIA PASSES AB 257 – FAST RECOVERY ACT – TO “PROTECT” RIGHTS OF FAST FOOD EMPLOYEES
First of all, many of you on this circulation list can breathe a sigh of relief, because the original draft of this bill included fast food restaurants with 30 or more locations nationwide. It was changed at the relative last minute to focus only on those with 100 locations nationwide. That excludes most if not all of my clients. For now.
For those large employers operating in California, the law creates a 10–person council comprising workers, union reps, employers and state officials who will have large control as to the wages and other conditions for these employees, and they have the ability to raise the starting wage for these employees as high as $22/hour in 2023. It then gets approval by a vote of employees. That shouldn’t be a problem. The council has other powers, such as having some sort of forum for retaliated employees. Not exactly sure how all that would work. Who knows if that creates yet another boondoggle for attorneys. They also seem to get a direct line to Cal/OSHA with regard to safety issues.
The creation of this special council and the law itself is already being challenged by the usual suspects you would expect to raise such a challenge. And so the battle begins. Stay tuned to this one as well.
OREGON EMPLOYEES WILL GET PAID LEAVE AS OF JANUARY 1 – BE AWARE FOR ANY REMOTE EMPLOYEES WORKING IN OREGON
I don’t normally flash alerts about other state’s updates, but I am highlighting Oregon’s new Paid Leave for a few reasons. First, it’s a reminder that these days, California is NOT the only state to adopt employee friendly laws. Connecticut just adopted one of these as well.
The REAL reason I highlight these changes is that a little something happened during the last few years called the pandemic. And the pandemic caused many employees to flee into the diaspora – taking flight and setting up shop in spots all over the country (and beyond) to work remotely. And many have remained. As I have mentioned before, the remote work option can work very well. But when your employees are working in other jurisdictions, be it municipalities (like San Francisco), states (like Oregon), or even countries, you need to know the laws of the land. Your employees will be governed by the laws of WHERE THEY RESIDE, because that is now their new workplace – NOT where YOU are based.
Now, this can be good for you. California has some of the strictest employment laws going. So having an employee work out of state may mean you no longer have to pay daily overtime, or provide the same sick leave or pregnancy leave, etc. Then again, do you really NOT want to offer your remote employee the same benefits as your other employees? In some cases, such as health insurance or worker’s compensation, you may not have a choice. Your carrier may not even offer benefits in that locale. You need to know all this information.
However, for certain you DO have to provide the leave that is required by their new residence, such as Oregon. And you have to ensure that you are taking out proper payroll deductions that will fund this new paid leave program.
One more thing. When employees transfer out of state, you should confirm the California benefits that they may lose. I had one client whose employee transferred to work remotely in a state where they did not offer comparable state disability insurance. The decision to move was totally her choice, but the employee was pregnant. So when it came time for her to take off work, she did not have SDI payments available for her, as she would have had in California. Just something for employees to consider when they make these decisions.
The Oregon paid leave applies if you have ONE employee working in Oregon, so long as you have 25 employees nationwide. So if you have one employee who has decided to work remotely in Oregon, and the rest of your organization is here this will impact you. If you enroll in our Employee Handbook Update Program, just let us know and we will include this policy for you. Our 2023 Updates will be released sometime around the end of November, after California solidifies all of its legislative changes for the upcoming year.
PLEASE, PLEASE BE CAREFUL OUT THERE – KEEP DOING THOSE SELF CHECKS
I honestly don’t know how to label this section, but here goes. In the past few weeks, I have been on the phone with a number of you (and you will know who you are), where we have just caught a little “oops” that somebody at your company did. In one case, a manager sent out a memo reminding employees to clock out whenever they left the building (not realizing that employees have the right to leave the premises on their paid rest breaks). In another case, a client had made a change to their grooming policy and just assumed they had run it past me, but didn’t. It was a small change, but the change now made it questionable legally. Another one had a manager sending out all sorts of messages to their team via “group chats,” not realizing that by doing so, they were probably requiring their employees to (a) work off the clock, and (b) use their cell phone for work.
It seems like every mediation I attend, or PAGA letter I receive from an attorney, I find out about some little, unlawful practice of my client that catches me completely off guard. One of the reasons I wanted to do these Briefings was to share my war stories, because I can’t be there with you all, 24/7, looking at every memo you send, checking every single thing you do and say in real time. I hope that by sharing more of these stories and little rules and nuances of the laws, it will help YOU catch some of these landmines. But I know that many of these foibles are buried deep at your own companies, so you have to help me and look for them on your own as well.
We can also try to find them together and schedule formal audits, times to sit down and go through files, both in cabinets and online, and truly search for what you may have, the policies, memos, forms that have been created over the years. I also stress again the importance of MANAGER TRAINING! The last time I suggested this, people sent me e-mails asking for recommendations on who does this. WE DO! We can jump on a zoom meeting and set up a meeting with your managers and have a talk about what’s important. I promise, it doesn’t sound all “legalese.” Now that we are live, we can do these in person, too. One of my restaurant clients used to have me come out once a quarter and just meet with their management team over lunch. They could just ask questions about what they were seeing, and I filled them in on what was going on in the industry. However you choose to do it, spend time with your managers vetting these issues. Honestly, I could give you a list of topics and YOU could do it. It’s more about topic awareness than anyway.
You all have to know that every time I “catch” one of these little mistakes – an unlawful memo that was sent that we “fix,” or a unlawful policy that we change, I get off the phone and SCREAM! Because I know the bullet we just dodged. I am not sure YOU always know, but I know!! I sit in these mediations and watch the pain in my clients’ faces when they are forced to settle these wage and hour cases for six and seven figures – for these stupid, picky, record keeping violations. I am just trying to keep as many of you out of those situations as possible. THAT is my end goal.
Okay, with that, you are on your own next Monday whilst my daughter and I go cheer on my daughter–in–law running the half marathon in Stockholm. I am ready for some nice, cool, Scandinavian weather after that awful heat. We are also making a quick pit stop to pay our respects to Her Royal Majesty. Stay safe and out of trouble until I get back.
#StandWithUkraine