Welcome to my latest Monday Morning Briefing (sorry I drifted into afternoon again). Happy January, I don’t know why this month always feels like it goes on forever, and we still have another week to go after this one. But at least the sun is shining!
I CAN SEE CLEARLY NOW – CALIFORNIA’S NEW PAY TRANSPARENCY LAW GOES INTO FULL SWING
The rain has stopped, the sky is clear, and we can see for miles now – that means no more hiding the ball. If you haven’t noticed lately, our employees want to know everything about who is paid what, and they assume they are entitled to this information. More than that, if they find out, they want everyone else to know. It’s called TRANSPARENCY, and it is the name of the game now. But if you’re cursing yourself for being in California again, at least you’re not alone this time. There are currently 17 states/cities that have some sort of law requiring up front disclosure of the salary or pay range to a job candidate.
California has been taking stronger measures in enacting equal pay laws starting in 2016, with the California Fair Pay Act, and we have seen amendments made to that law pretty much every year since then. When I pulled up the new FAQs for the Pay Transparency Law, you can see the evolution of the law and exactly what was added, by year, as new FAQs are added, by year, to address the new parts of the law. Consequently, Question 29 on the FAQ now says:
“As of January 1, 2023, an employer with 15 or more employees must include the pay scale for a position in any job posting. If an employer with 15 or more employees engages a third party to announce, post, publish, or otherwise make known a job posting it must provide the pay scale to the third party and the third party must include it within the job posting.”
So, of course, this issue has sparked much debate, many calls from clients, many articles and analysis from legal experts. The biggest question seems to center on the issue of “pay range.” People want to know, can the pay range be dependent on different things, such as experience, qualifications, location? One client straight out said to me “we are going to pay what it takes to get the candidate, otherwise, we lose them. So we can post whatever we want, but if the candidate demands more, we may have to pay more.” Of course, we all know how that story ends, and that is how we wind up with different pay rates. Making the pay range “dependent” on anything, up front, seems to me to avoid the entire purpose of the law.
If all of your candidates are in different job markets, you may be able to get away with that. But I got an email from a client just today who woke up to an “anonymous” email from one of his crews, CITING THE EQUAL PAY ACT, and noting pay discrepancies between several different employees on the manufacturing floor, listing length of employment, gender, and position. These employees are doing their homework.
He is not the only one who is getting letters and complaints like this. Don’t underestimate your employees. They read the news. They hear about these new laws. The know what is expected of you. Therefore, YOU need to know what is expected of you. The time when supervisors can play favorites and give all their little buddies raises, that’s over. You better know who is making how much money in your warehouse and manufacturing floor, who got raises last, and why. Because your employees do. And they know that now, they get to come and ask what the current pay scale is for their own position, plus they have the right to discuss their wages and benefits with each other. So look out.
We are going to be seeing a LOT of these claims, maybe not as much by lawyers (who like the easy, cookie cutter wage and hour cases), but these are the emotionally charged cases that push the buttons of our employees. EVERYBODY hates favoritism. So these will be the ones that get taken to the state agencies, who also HATE favoritism. Or, if you wind up firing an employee for making a fuss about these issues, then you have what I addressed last week – a whistleblower. Lawyers do like those cases, by the way.
So now that the sun is shining, it might be a good time to do some spring cleaning, go through all your pay ranges, and lay them out so you can really take a good look. How do they stack up? And if you need help, we work with experts and we can help you run some more sophisticated pay audits to give you some real clear guidance on how your pay ranges stack up.
As far as recruiting goes, we know that a lot of you are still throwing up your hands on this new law, but I do think we are going to have to make some reasonable efforts to comply. If you are posting jobs that you reasonably expect to fill in California, you really are going to have to list some sort of range. You won’t be able to get away with saying “it depends.” They can be large ranges, but you do have to post them. They need not include bonuses. And if you are using third parties to do your bidding, they are supposed to be posting the range as well.
Here is the link to the FAQs, for your bedtime reading.
GIVE THOUGHT ABOUT MULTI-LANGUAGE DOCUMENTS IN THE WORKPLACE AND FILES
Over the years, I have given many lectures on document retention, document destruction, document maintenance (that is, what documents to put in what personnel files vs medical files and investigation files). But I am not sure I have ever opined on the topic of how to work with bilingual or multi-lingual documents from a file maintenance standpoint. How silly of me to ignore this topic.
So first, let’s start with what documents should be in your personnel file that are ONLY in English (if you have a bi-lingual workforce).
As you all know, we provide you with an Employee Handbook that has portions of the handbook in Spanish, but not all of it. We have translated the arbitration, the harassment policy, the acknowledgment and this year, the meal and rest break policy. Those are key policies to have translated for a dual/multi- language workforce. We also have language on the front that says that if the employee does not speak English, they should find someone to get those other portions read or translated for them. You can go to the expense of translating the entire handbook, but for those who do this, you know how expensive it is to do every year. The policies we translate are the most important ones.
You may have other company forms and policies that you do not translate for whatever reason, but if you do not, do not expect to be able to show that your non-English speakers are truly held accountable. But there may be memos that come down from ADP, or a vendor, etc. Or there may be emails or letters from customers in files.
What documents should be in Spanish (or other language spoken by the employee(s))?
We have many forms that are both in English and Spanish, the Meal Break Waiver. The 2810.5 form. The DWC-1 form. Those are easy.
So, here is the part that has become an issue. I get files with forms that have been translated into Spanish – Corrective Action forms, Final Warning forms, Employee Notes, Safety Meetings. And the employee comments are there, and the manager notes are there. And usually HR notes are there. And sometimes even the final termination paperwork, all there. And it looks fabulous. Only one small problem – they are ONLY in Spanish. And forget that I cannot read it (I can probably fake my way through the Spanish by now). We have to assume that opposing counsel won’t be able to read it. Or the Judge/Arbitrator/EEOC, a treating physician or adjuster, if this is a job description, whomever it is. And sure, we can get it all translated. But it loses its effectiveness, as you can imagine. It’s also possible you have others in the company who cannot read it (maybe not, but maybe).
So here is what I am requesting – when we are talking about using an employment related form, let’s always start first with a form in English that hopefully I or some other knowledgeable employment lawyer has approved. Then, we can translate that form. So we always have an English and Spanish (or Mandarin or Korean or whatever) form. And when the form is completed, we have an English AND Spanish version prepared, jointly, to live in the file together, in real time, dated the same date. Ideally, they would both be signed by the employee. And that should be our protocol.
Okay, my allies, I am giving you a short one this week because it’s incredibly busy for me, which does NOT bode well for all of you. Yes, the lawsuits and demand letters have been fast and furious. I wish I could tell you different, but I have not seen it like this in a while. Double down on that big C word “Compliance,” keep treating your employees well, and do NOT forget manager training! I know I have some coming up with many of you. As I always say, you are only as strong as your weakest manager link!
And stay safe – too many shootings going on . . . again. Still.
Beth
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