On April 12th at 1:00 pm, we will be doing one of our most-attended webinars this year, ” Workplace Violence/Active Shooter Training – What Employers Need to Know”. As you already know, this is a very hot topic and highly litigious area for all employers. For more details, see our website at www.strattonagency.com of contact an HR Representative at 925-556-4404 for more details.
Employers covered by OSHA’s recordkeeping rule are required to prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” beginning February 1 and keep the form posted until April 30. The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.
Prior to posting, a company executive must review the OSHA 300A and certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”
Under OSHA’s rule, a company executive can be one of the following: (1) an owner of the company (only if the company is a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.
OSHA can cite an employer who fails to post the OSHA Form 300A as required. Employers should take steps now to ensure they are fully compliant.
If you should have any questions, please contact your HR Representative at 925-556-4404.
- As of 1/5/18, there have been 28 flu-related deaths under age 65;
- As of 1/17/18, there have been 42 flu-related deaths under the age of 65;
- What is mainly circulating this year is the H3N2 and tends too cause more severe disease;
- As of 1/17/18, at least 3,269 people in the state have tested positive for the flu, however it is believed this is very much under-reported;
- As the number of confirmed cases of influenza grows, it is important to increase employee health and safety protocols for each place of employment, including disinfection of all surfaces and continually washing hands;
- Health officials have recommended a full seven days to stop the cycle of spreading influenza;
- Some hospitals are starting to initiate “flu protocols”. At Loma Linda Medical Center in San Bernardino County, the medical staff has erected a triage tent outside the emergency room to handle the influx of flu patients. Some of you will remember similar protocols some years back for the H1N1;
- Employers should review illness protocols with employees and start to address the need for additional help to cover for sick employees;
- Start stocking up on required personal protective equipment as needed including gloves. If N95 respirators are used, please see us to assist you with meeting Cal OSHA requirements.
- We can also assist you with flu and handwashing posters;
- It’s not too late to get flu shots!
If you should have any questions, please contact us at 925-556-4404
California employers should remember that they must revise their notice to employees regarding the federal Earned Income Tax Notice to include California’s version of it. Effective January 1, 2017, employers must revise their notice to employees regarding the earned income tax credit when issuing W-2 or 1099 forms.
If you should have any questions, please contact your HR Representative at 925-556-4404.
Nearly 20% of Oregon’s state-licensed marijuana retailers in a recent undercover operation sold cannabis to buyers younger than 21 during in December, authorities said.
The Occupational Safety and Health Administration (OSHA) promulgated new rules effective January 1, 2017, which requiredadditional reporting of injuries and illnesses by employers with 250 or more employees or employers with 20-249 employees in “hazardous industries.” These reports will be collected through an online portal and the reports will eventually be made publicly available on OSHA’s website.
The initial reports were originally due to be submitted to OSHA by July 1, 2017. However, that date came and went with no actual way to submit the reports and a note on the OSHA website said that implementation had been delayed.
Today, OSHA launched the Injury Tracking Application (ITA) which employers will use to electronically submit injury and illness data. OSHA also announced its intent to extend the date by which employers are required to submit their reports to December 1, 2017.
The reporting process is entirely electronic and has three different options for data submission.
1. Users will be able to manually enter data into a web form.
2. Users will be able to upload a CSV file to process single or multiple establishments at the same time.
3. Users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface).
Employers should begin reviewing the ITA instructions and other materials available on OSHA’s website to ensure that they are prepared to properly submit the data by December 1, 2017. They should also ensure that they are adequately and accurately capturing the required data.
In addition to the reporting requirements, the new OSHA rules also impacted employer policies effective January 1, 2017. If not yet done, employers should review their policies to ensure that they do not have potential chilling effects on employee reporting of accidents and injuries, and inform employees of their right to report workplace injuries and illnesses.
If you should have any questions, please contact your HR Specialist at 925-556-4404.
The construction industry is one that can be unpredictable. One of the main reasons for this is because every market is different. While one market may be doing well, another may be suffering. One component of the industry that can cause major issues for construction companies is something called disgorgement . If you want to avoid this in California, then you need to take the appropriate actions.
What is Disgorgement?
Disgorgement is a law or regulation that can require a business to give something up as demanded or through legal compulsion. In the construction industry, it means that the construction company may have to give back their profits from a project they have completed or are in process of completing. For example, if a contractor enters into a contract with a client to build a property, performs the work, receives payment, and then has to return the payment due to legal reasons, that is disgorgement in action.
Actions to Take to Avoid Disgorgement
Just as lenders, real estate agents, and investors stay up to date on different laws and regulations affecting their sides of the industry, contractors benefit greatly from understanding laws and regulations that could potentially affect their work. Obviously, disgorgement is not something that any contractor wants to happen to them. In order to avoid this, there are some key things you need to do and stay on top of so you can avoid it in your business.
- Have a valid license. You and all of your employees should have a valid license. This means that you need to have your license during the time that you are performing the contractual work. You do not want to start a project without an active license. Not only would you open yourself to the possibility of disgorgement but you could also face some civil and criminal penalties such as jail time, fines, and more.
- Have workers’ compensation insurance. You want to make sure that you have the proper insurance at all times during a project. Beyond that, you want to make sure that the insurance does not lapse at any time. Even though it is an extra expense, it is not one that you want to let lapse so you can save a few dollars. You could end up losing all of your money from the project as a result. You also do not want to list employees as independent contractors to save money on this insurance if they are not. Doing so could invalidate your contractor license immediately and you may not even be notified of this change. You could then be operating as usual and not even know you have lost your license.
- Only collect payment for work completed. You do not want to take money for any work that has not been done or for materials that have not been delivered yet. It is against the law in California to do this and you must limit a down payment to $1,000 or 10% of the purchase price . Since this is law in California, it is important to follow it at all times, even if you are strapped for cash. If the working relationship between you and your client were to go bad, then they could use that against you in court and it could result in disgorgement.
As you can see, disgorgement is something that can be avoided. As long as you comply with the laws and regulations, you should not be in danger of disgorgement for your construction business.
Employers in California will soon face several new requirements involving workplace inspections by US Immigration and Customs Enforcement (ICE).
Effective January 1, 2018, the Immigrant Worker Protection Act will prohibit employers in California from voluntarily consenting to allow immigration enforcement agents to enter any nonpublic areas of their workplaces unless they obtain a subpoena or judicial warrant.
The Act also will prohibit employers from consenting to enforcement agents accessing, reviewing or obtaining their employee records (except Forms I-9 and other documents for which ICE has provided the required three days’ notice before inspection) without a subpoena or judicial warrant.
Employers also will be required to notify employees of any inspections of Forms I-9 or other employment records within 72 hours of receiving notice of the inspection, including:
- The name of the agency conducting the inspections;
- The date that the employer received notice of the inspection;
- The nature of the inspection to the extent known; and
- A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
By July 1, 2018, the California Labor Commissioner will create a template that employers may use to satisfy these notice requirements.
Within 72 hours of receiving inspection results, employers will be required to provide affected employees a copy of the written immigration agency notice and a written notice containing certain information about their collective obligations.
Employers that violate any of the aforementioned requirements will be subject to civil penalties of $2,000 to $5,000 for a first violation and of $5,000 to $10,000 for each subsequent violation.
In addition, employers will be prohibited from reverifying the employment eligibility of a current employee at a time or in a manner not required by specified federal law. Violations of this requirement will be subject to a civil penalty of up to $10,000.
If you should have any questions, please contact your HR Specialist at 925-556-4404.
On Wednesday Oct 25, 2017 @ 1:00 PM, we will be offering a 45 minute webinar titled “Workplace Violence/Active Shooter Training”.
How timely is this?
As fas as I know, we are the only HR/Safety/Insurance company offering such a class for employers! This webinar spans across all employment types and I am sure if we get the word out, we will have some great attendance. Some of the areas we will be discussing include:
- OSHA required Injury & Illness Prevention Program and an Emergency Action Plan and documented employee training
- Workers’ Compensation due to injuries related to workplace violence
- Legal ramifications including heavy fines and possible criminal involvement on the part of owners and managers
- Hostage situations
- Robberies/Burglaries and how are they different
- Employee Assistance Plans
- Business recovery – Can you business actually survive an “active shooter situation”? and
- And some mind blowing statistics!
With employers always having limited resources for safety, they would benefit from OSHA’s Top 10 violations for 2017. If the employer are going to put money towards safety, I would recommend the following areas as applicable to their business:
1. Fall Protection – General Requirements (1926.501)
2. Hazard Communication (1910.1200)
3. Scaffolding (1926.451)
4. Respiratory Protection (1910.134)
5. Lockout/Tagout (1910.147)
6. Ladders (1926.1053)
7. Powered Industrial Trucks (1910.178)
8. Machine Guarding (1910.212)
9. Fall Protection – Training Requirements (1926.503)
10. Electrical – Wiring Methods (1910.305)
Fall protection has led the safety violations for many years and generally include falls in excess of 8 feet.
Hazard Communication includes all those written safety plans required by law.
No matter what industry an employer is in (and some are more than one), there is a high likelihood that you have an area in OSHA’s Top 10 violations.
Starting September 18, 2017, employers must use the revised Form I-9 with the revision date “7/17/17” to verify the identity and work eligibility of every new hire.
The new Form I-9 version is very similar to the prior edition. It has updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section, and it has removed “the end of” from the phrase “the first day of employment.” USCIS also revised the List C documents section, specifically related to the Consular Report of Birth Abroad and the Report of Birth issued by the Department of State. The process of completing the I-9 remains the same, as does the deadline to complete an I-9.
If you should have any questions, please contact your HR Representative at 925-556-4404.
Flu season is coming, and healthcare (and other) organizations may be asking whether they should have mandatory flu vaccine policies. If an employer decides to implement a mandatory program, the next question is how to administer it.
In the healthcare industry, mandatory vaccination programs for employees are common. A number of states require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions). The Centers for Disease Control (CDC) and Prevention website tracks these various state laws and their requirements, and the CDC itself recommends that all health care workers get vaccinated (including all workers having direct and indirect patient care involvement and exposure).
However, “mandatory” doesn’t always mean mandatory. In some circumstances, healthcare providers may have to grant exceptions to their “mandatory” vaccination programs. Federal and state discrimination laws require employers to provide reasonable accommodations to employees with disabilities and sincerely-held religious beliefs. Some employees may be medically unable to receive the flu vaccine. Others may have religious objections. Absent undue hardship, healthcare providers will need to create exceptions to their “mandatory” policies for employees as a reasonable accommodation for the employees’ disabilities or religious practices.
Missteps in the accommodation process can open the door to litigation. Last year, the U.S. Equal Employment Opportunity Commission (EEOC) sued a hospital that declined to grant religious exemptions for six employees who refused the flu vaccine. The case settled for $300,000. Another similar case, Equal Employment Opportunity Commission v. Baystate Medical Center, is still pending in federal court.
So how can healthcare employers implement mandatory flu vaccine policies? Every workplace and situation is different, but there are a few key points to keep in mind:
- Be prepared. Before rolling out a mandatory vaccination requirement, an employer may want to have a process in place for requesting accommodations. A carefully written vaccination policy can describe that process, so employees understand where to turn if they need to ask for accommodation. Employers may also want to have forms for employees to fill out to request a waiver as an accommodation.
- Objections based on religion or disability. Employers have an obligation to accommodate only sincerely held religious beliefs or disabilities. But remember, “religion” and “disability” are broad terms. The EEOC and at least one federal court consider veganism, in some circumstances, to constitute a religious belief that could exempt an employee from a flu-vaccination requirement. The bottom line is that an employee’s objection to a vaccine might not appear to be “religious” at first blush, but it could be religious in the eyes of the law. Medical conditions or restrictions causing the need to forego a flu vaccine should be relatively rare. Recently, non-egg options and versions of the shot that are safe for those with egg allergies have become available. However, valid medical objections may still exist.
- Explore accommodations. Employers may want to have general reasonable accommodations policies, as well as procedures and request forms, to manage the interactive process. For an employee who declines the vaccine, the appropriate accommodation will depend on a variety of factors, including whether the employee’s position involves patient contact. Depending on the circumstances, appropriate accommodations may include modifying the employee’s work duties, finding an alternate version of the flu shot (or a nasal spray), having the employee wear a surgical mask, transferring the employee to a vacant position, or a leave of absence. Once the accommodation is in place, an employer can continue working with the employee to make sure it remains effective and feasible.
- Document. In the context of vaccines and otherwise, employers will want to carefully document the accommodation process in writing. Specifically, businesses should keep clear records of precisely what accommodations have been requested, considered, negotiated, and either granted or rejected. Employers may also want to make sure documentation identifies who was involved in the process, when each step took place, whether disciplinary action was taken, and why each decision was made along the way.
Since mandatory flu vaccine programs have been a hotbed for litigation (and a source for the viral spread of misinformation), healthcare providers may want to proceed with caution and make sure their processes and procedures comply with applicable discrimination laws.
If you should have any questions, please contact your HR Representative at 925-556-4404.
As temperatures are projected to hit triple digits across the state with
prolonged heat waves, Cal/OSHA reminds employers with outdoor workers that shade
must be made available at all times, and must be in place when temperatures reach 80
degrees or above.
The National Weather Service has issued excessive heat warnings and high heat
advisories statewide, especially in inland areas. Periods of prolonged, widespread triple
digit heat is expected tomorrow through Thursday in downtown Los Angeles and much
of Southern California’s inland areas, as well as in the Bay Area, Monterey, Sacramento
and Central Valley regions.
Cal/OSHA urges workers experiencing possible overheating to take a preventative cooldown
rest in the shade until symptoms are gone. Workers who have existing health
problems or medical conditions that reduce tolerance to heat, such as diabetes, need to
be extra vigilant. Some high blood pressure and anti-inflammatory medications can also
increase a worker’s risk for heat illness.
Staying properly hydrated throughout the workday is one of the most effective heat
illness prevention techniques. Cal/OSHA encourages all workers to drink at least one
quart of water every hour, preferably sipping an 8-ounce cup of water every 15 minutes.
Drinks such as soda, sports drinks, coffee, energy drinks or iced tea are not
recommended for hydration. Also, the lingering effects of alcoholic beverages can
contribute to quickly dehydrating the body in hot weather.
In addition to the basic steps outlined by California’s heat regulation for employers with
outdoor workers, heat at or above 95 degrees Fahrenheit requires additional
precautions. Among other measures, it is crucial that workers are actively monitored for
early signs of heat illness. This helps ensure sick employees receive treatment
immediately and that the symptoms do not develop into serious illness or death.
In case a worker does get sick, supervisors and coworkers must be trained on the
emergency procedures required to ensure that the sick worker receives treatment
immediately and serious illness does not develop.
Cal/OSHA inspects outdoor worksites in agriculture, construction, landscaping, and
other operations throughout the heat season.
If you should have any questions, please contact your HR Representative at 925-556-4404.
In a very busy work environment, it’s easy to become distracted and put health on the back burner.. Unfortunately, skipping healthy habits can make us more susceptible to illnesses like viral and bacterial infections. It’s not good for business when employees or their family members are sick, so here are some tips for preventing illness in the workplace.
1. Offer immunizations: Vaccines are effective at preventing illnesses like the flu and other infectious diseases. Encourage employees to keep their vaccines up to date for themselves and their families. It’s best to make immunizations as convenient and cost-effective as possible. Employers can offer on-site clinics and choose a health plan that provides vaccines at little or no cost to participants.
2. Promote healthy foods and drinks: Maintaining a healthy diet and consuming a wide variety of essential nutrients can ward off disease. Next time you are thinking about offering doughnuts for a breakfast meeting, consider a healthier option like fruit and a low-sugar, high-protein yogurt. You could also implement a healthy vending and catering policy at your organization, which requires foods offered in the workplace to meet certain nutrition standards. Additionally, our bodies are not well-equipped to fight infections when we are dehydrated. Filtered drinking water should be easily accessible at your worksite. Installing water bottle refill stations makes drinking water a convenient choice. Always offer water as a beverage option at meetings and work events, and make sure that vending machines and cafeterias stock plenty of water as well.
3. Keep food safe: How long have those leftover turkey sandwiches been sitting out in the break room? Did employees wash their hands and follow good food safety practices when preparing their prized dish for the annual pot luck? Generally speaking, after about two hours at room temperature hot and cold foods will no longer be safe to eat. Make that only one hour if your employee picnic is outside in the summer heat. To keep hot and cold foods fresh longer, they must be properly insulated with hot and cold packs to maintain a safe temperature. Wash hands and prep surfaces between tasks like handling raw proteins and preparing ready-to-eat fruits and vegetables.
4. Minimize stress: Acute and chronic stress can weaken the immune system and make you more prone to infections. Stress in the workplace can have a number of causes such as working in an environment where employees have little control and high demands. Reducing stress in the workplace not only prevents the spread of infectious diseases, but also prevents many chronic conditions such as obesity and heart disease.
5. Encourage ZZZZs: Getting the right amount of quality sleep is important for many reasons and helps with fighting off diseases. Unfortunately, about a quarter of adults report having insufficient sleep at least 15 out of every 30 days.
6. Clean work spaces: Maintain good hygiene when it comes to your workplace. Bathrooms, common areas, break rooms, phones, keyboards, desks, door handles and elevator buttons can be germ magnets. Keep the common areas clean and encourage employees to clean personal office spaces regularly. Make sure bathrooms and break rooms are always stocked with plenty of hand soap to promote good hand hygiene.
7. Have a sick policy: An employer’s sick policy can dictate whether an employee is likely to come to work or stay at home when they are contagious or not feeling well. It’s important for employees to stay at home when they are sick. Sick employees are not productive at work, and staying home prevents the spread of disease to co-workers. An employee should not feel discriminated against or scrutinized for using sick days. Supervisors should be flexible and encourage their employees to refrain from working until they are no longer contagious and are feeling better.
Implement these simple tips at your worksite for a healthier, happier workforce. If you should have any questions, please contact your HR Representative at 925-556-4404.
Cal/OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week.
Cal OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week. California rules are very clear on how employers must protect their workers from heat illness.
Cal OSHA’s goal is to prevent deaths and serious illnesses and injuries caused by exposure to heat.” Special attention must be given to new employees who have not been acclimatized to working under hot conditions, as they are particularly vulnerable to heat illness. They must be monitored carefully for signs of heat illness and should, if possible, be allowed to begin work earlier in the day when the temperature is lower or gradually work up to a full schedule. Many regions of the state will be reaching temperatures in the triple digits. When temperatures reach 95 degrees or above, employers are required to implement high heat procedures to ensure outdoor workers are protected.
Procedures include effective monitoring of all workers through methods such as a mandatory buddy system for workers or regular communication with workers who work alone. California’s Heat Illness Prevention Standard requires employers to train workers on the signs and symptoms of heat illness, provide shade when temperatures exceed 80 degrees, develop emergency response procedures and train workers on how to execute those procedures when necessary. Cal OSHA inspects outdoor worksites in agriculture, construction, landscaping, and other operations throughout the heat season.
A written Injury and Illness Prevention Program is required for employer who have more than 10 employees. Documented Heat Stress training is required regardless of employee size.
If you should have any questions, please contact us 925-556-4404.
It is well established that an employee need not specifically request leave under the Family and Medical Leave Act (“FMLA”) in order to benefit from the Act’s protections. Rather, the law requires the employer to take action to notify an employee of FMLA rights when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason or that the employee may need such leave. The difficulty facing employers is when to initiate the FMLA process based on observations of the employee’s condition or behavior. In a recent decision out of the Northern District of Illinois, the Court held that an employee sufficiently stated a claim for interference under the FMLA because the employer was on notice of a serious health condition when she became “extremely distraught and began crying regularly and uncontrollably at work.”
In Valdivia v. Township High School District 214, a secretary claimed her coworkers made derogatory remarks about Hispanic students and their families. She allegedly complained but nothing was done. After expressing concern over whether she could continue working while in frequent distress, she was allegedly told that she needed to decide whether she wanted to continue working or resign. The employee reportedly also told the principal that she was overwhelmed, not sleeping, not eating, and losing weight but she was again given the option of working or resigning. Ultimately the employee resigned for medical reasons.
In addition to claiming a hostile work environment, the employee claimed that the school interfered with her FMLA rights by failing to provide her notice that she had the right to take job protected leave. The Court noted that the FMLA notice requirement for employees is “not demanding.” In fact, it may be possible that the employee is not even aware he/she is suffering from a serious health condition. In these cases, “clear abnormalities in in the employee’s behavior may constitute constructive notice of a serious health condition.” The school argued that it was not reasonable to be held accountable for knowledge of the employee’s health condition when she was not even aware of it. The employee was diagnosed with depression after her termination. The Court dismissed that argument and noted that uncharacteristic or unusual conduct at work may itself provide adequate notice of a serious health condition.
Employers often struggle with how to address situations involving changes in an employee’s condition or conduct. Failure to address the situation as one that is potentially covered by the FMLA or even the ADA could result in a violation of the employee’s rights under those laws. On the other hand, treating an employee as if they have a serious health condition could result in a claim that the employee was improperly regarded as disabled or, in the event of a later adverse employment action, retaliated against for having the health condition. As demonstrated by this decision, Courts and the Department of Labor tend to give employees the benefit of the doubt with respect to notice of an FMLA condition and employers must be cautious about failing to react in these situations.
As Northern California braces for triple digit temperatures, Cal/OSHA urges all employers to revisit their Injury and Illness Prevention Programs and their emergency response procedures to make sure they are thoroughly prepared for high heat. Sacramento’s National Weather Service is forecasting temperatures in the 90s today and through the weekend. Early next week temperatures will reach triple digits in much of Northern California, from south of Stockton up to Redding. “During heat waves and whenever temperatures reach or exceed 95 degrees, employers must take additional steps to monitor workers for signs and symptoms of heat illness,” said Cal/OSHA Chief Juliann Sum. “Water, rest and shade can protect workers from the heat.” California’s outdoor workplace Heat Illness Prevention regulations require employers to take four steps to prevent heat illness:
• Training – Train all employees and supervisors on heat illness prevention.
• Water – Provide enough fresh water so that each worker can drink at least 1 quart per hour, and encourage workers to do so.
• Shade – Provide shaded areas upon request or when temperatures exceed 80 degree, and encourage any worker to take a cool-down rest in the shade for at least 5 minutes to protect against overheating. Workers should not wait until they feel sick to cool down.
• Planning – Develop and implement effective written emergency response procedures for complying with Cal/OSHA’s Heat Illness Prevention Standard. Cal/OSHA will inspect outdoor worksites of industries such as agriculture, construction, and landscaping throughout the heat season. Cal/OSHA’s Heat Illness Prevention program, the first of its kind in the nation, includes enforcement of heat regulations as well as multilingual outreach and training for California’s employers and workers. Information on heat illness prevention requirements and training materials is posted on Cal/OSHA’s Heat Illness Prevention web page and on the “Water. Rest. Shade. The work can’t get done without them” educational campaign website. A Heat Illness Prevention e-tool is also available on Cal/OSHA’s website.
In an information letter, the IRS concludes that benefits an employer provides under its company parking policy are taxable income to the employees that choose to use the benefit.
An IRS information letter is the agency’s response to a taxpayer’s request for information about the taxation of a specific benefit under particular circumstances. Information letters are not binding legal advice and may not be used or cited as precedent. However, they provide general guidance for other employers that provide, or are contemplating providing, similar benefits to employees under similar circumstances.
An employer implemented a policy under which it contracted and paid for secure parking for its employees in a parking facility near the office. The employer pays the parking vendor directly for the parking spots. Employees who wish to use the parking must agree, in writing, to reimburse the employer by having the monthly parking fee deducted from their pay the month before they use the parking. The employees cannot get a refund of the amounts withheld if they do not use the parking.
The cost of the parking is less than the statutory limit under Internal Revenue Code (IRC) § 132. The employees do not have the option to choose between taxable cash compensation and parking. Accordingly, the employer does not exclude the cost of the parking from the employees’ taxable wages. Instead, the employer deducts the cost of the parking from the employees’ after-tax wages.
The employer requested information from the IRS because employees who have elected to use the parking spots have asked whether the amounts deducted from their wages should be excluded from their taxable income and wages as a “qualified parking” benefit under the IRC.
‘Qualified Parking’ Under the IRC
Under the IRC, an employer-provided fringe benefit is presumed to be taxable income to employees unless it is specifically excluded from income by another section of the IRC. Under IRC § 132(a)(5), “qualified transportation fringe benefits” are excluded from employees’ gross income. “Qualified parking” that is “provided” to employees on or near an employer’s work premises is excluded from gross income under IRC § 132(f)(1)(C). Under IRC regulation § 1.132- 9(b) Q/A 4, parking is “provided” by an employer if:
- It is on employer-owned or -leased property;
- It is paid for by the employer; or
- The employer reimburses employees for their parking expenses.
In its information letter responding to the employer’s inquiry, the IRS concluded that in the employer’s particular situation, the parking benefits are not “qualified transportation fringe benefits” and, therefore, are taxable to the employees. To be considered “qualified”, and therefore tax-free, the employer would have to reimburse the employees for their parking expenses by providing the reimbursements either:
- In addition to the employee’s regular wages; or
- In place of pay.
Reimbursements provided in place of pay are called “compensation reduction arrangements.” Under such arrangements, an employer permits employees to elect to reduce their taxable compensation in order to receive tax-free reimbursements for parking expenses they have actually incurred.
This particular employer’s arrangement, under which the employer purchases parking spots from a parking vendor and then permits employees to pay the employer for the parking spots using the employees’ own after-tax compensation, does not meet the definition of “qualified parking” under the IRC and regulations.
If you should have any questions, please contact your HR Specialist at 925-556-4404.
As a series of tragic events in recent years illustrate, employers must confront the reality that they are not immune from workplace violence, including the risk of active shooter events. While that challenge may seem daunting, there are certain steps employers can and should take to ensure their workplace and their employees are protected.
It is important for an employer to first understand that workplace violence, as defined by the FBI, is “any action that could threaten the safety of an employee, impact an employee’s physical or psychological well-being, or cause damage to company property.” As such, “workplace violence” encompasses a wide category of acts.
In order to help an employer recognize and prepare for a potential threat, Doherty recommends the following three steps.
Conduct a Needs Assessment
One of the most important things an employer can do is to conduct a needs assessment across the organization to determine the strengths and/or weaknesses of its policies, procedures, practices and other resources aimed at preventing or mitigating an act of violence. Also recommended by the Occupational Safety and Health Administration, this audit should be a cross-functional, multi- disciplinary effort that encompasses HR, legal, security and other departments that may be somehow involved in ensuring that appropriate measures are taken in the event of an incident.
In addition, by conducting a needs assessment in the organization, an employer will be able to identify any shortfalls it may have. For instance, a small business without a legal or security department of its own may decide that it should outsource certain functions such as drafting and/or reviewing its policies and safety procedures. Doherty also suggests that organizations, especially small businesses, develop a relationship with their local law enforcement agency and have them “on call” in the event an employee or third party raises concerns.
Educate the Workforce
An employer should focus on awareness as a vital first line of defense because there are always warning signs of behavior before a violent incident.” As a result, training the general workforce, including supervisors and department heads, about how to identify behavioral indicators of concern is critical.
First, however, employees should be made to understand that a potential attacker does not fit a particular descriptive or demographic profile. It is always certain behavior or indicators exhibited by the person that assisted the agency in assessing and identifying a threat, not the fact that the attacker fit a particular profile.
Some common behavioral indicators that should cause concern include:
- A dramatic decrease in productivity;
- A systemic pattern of being disheveled or unkempt;
- Paranoid delusions, e.g., “Everyone is out to get me.”
- History of despair or depression;
- Comments alluding to suicide;
- Major loss or change in life, e.g., divorce or death in family; and
- Increased interest or discussion about violence or weapons.
In recognizing these behavioral indicators, it will allow the employer to increase scrutiny over an employee’s actions, productivity and interactions with others.
As important as training the workforce on behavioral indicators is, creating a “culture of safety” that encourages employees to report concerns as they emerge rather than wait until they escalate is just as critical. An employer should have a reporting procedure in place that allows employees to make a report without fear of retaliation. Also, supervisors should be trained on how to address an employee who comes to him or her to raise a concern and know when to escalate it through the appropriate channels (e.g., a department head or law enforcement).
An attacker rarely will make a direct threat. In fact, in most cases, he or she won’t make a threat at all. Therefore, being able to identify behavioral indicators are key.
Understand the Domestic Abuse Connection
One component of workplace violence prevention believes employers rarely consider is the connection between domestic abuse and violence at work. 33% of women killed in the workplace are killed as a result of a domestic abuse.
Employers should encourage employees to voluntarily bring a domestic abuse situation and/or restraining orders to the attention of HR. In doing so, HR may be able to take appropriate steps to ensure the physical security of the domestic violence victim as well as his or her co-workers.
For instance, HR may give the receptionist or the security guards a picture of the perpetrator to be on alert and ensure that he or she does not gain access to the workplace. Also, HR may change the victim’s parking spot, email address, or phone number to inhibit the perpetrator’s ability to find the victim and protect the workplace. Oftentimes, a restraining order specifies the workplace as a forbidden area for that person to visit so it is imperative that the employer as well local law enforcement are made aware of the parameters of the restraining order.
It should be stressed that it is also important for the employer, HR, supervisors and employees to be trained on how to spot someone who may be a victim of domestic violence. In other words, all should be aware of “behaviors of concern” related to domestic violence, including:
- Increased nervousness;
- Harassing phone calls
- Increased uninvited appearances of the spouse at work; and
- Appearance of unexplainable bruises.
Here in California we also have two very important tools dealing with Domestic Abuse including;
- Domestic Violence Restraining Order (DVRO)
- Gun Violence Restraining Order (GVRO)
While neither of these can completely solve a domestic abuse situation, they can go a long ways in keeping a safe workplace.
If you should have any questions, please contact your Human Resources Specialist at 925-556-4404.
San Francisco’s notoriously employee-friendly ordinances continue to set the standard for its neighboring cities. Emeryville, which is across the bay from San Francisco and neighbors Oakland, recently passed a fair workweek ordinance that patterns itself off of San Francisco’s Retail Workers Bill of Rights . The Emeryville ordinance applies to larger retail and fast food employers, and has strict scheduling requirements as set forth below.
Effective Date and Applicability
Emeryville’s Fair Workweek Employment Standards will become effective on July 1, 2017. These standards will apply to retail employers with at least 56 employees globally, or fast food employers with at least 56 employees globally and 20 or more employees within the city of Emeryville. To be covered under the ordinance, employees must perform at least two hours of work per calendar week within the city of Emeryville.
Advance Notice of Work Schedule
New hires: Prior to or upon the start of employment, covered employers must provide a written, good faith, estimate of the employee’s work schedule. The employee may then request that the employer modify the schedule, which the employer must consider. The employer retains sole discretion to accept or reject a modification and must provide the employee written notice of its decision prior to or upon the start of employment.
During employment: Covered employers must provide employees two weeks’ advance notice of their work schedules by either posting the written schedule in a conspicuous, readily accessible place at the workplace or by transmitting the work schedule by electronic means. For new employees, the employer must provide the employee’s schedule prior to or upon hire.
Scheduling changes: A covered employer must notify an employee of any changes to his or her posted schedule via in-person conversation, telephone call, email, text message, or other electronic communication. Employees have the right to decline any previously unscheduled hours, and the employer owes “predictability pay” when the employer adds or subtracts hours or moves to another date or time, cancels, or adds a previously unscheduled shift. Critically, employers do not owe predictability pay for employee-generated changes.
“Predictability pay” is based on an employee’s regular rate of pay, and is owed under the following circumstances:
- When an employer provides less than 14 days’ notice but more than 24 hours’ notice, the employer owes one hour of predictability pay for each changed shift.
- When an employer provides less than 24 hours’ notice, the employer owes a different amount of predictability pay based on whether the previously scheduled hours are reduced/canceled or merely changed.
- If shift hours are canceled or reduced, the employer owes either four hours or the number of hours of the employee’s scheduled shift, whichever is less.
- If the hours are merely changed, the employer owes one hour of predictability pay per shift.
Exceptions: Predictability pay does not apply to any employee-initiated schedule changes, such as requested sick leave, time off, shift trades, or additional shifts. Predictability pay also does not apply when operations cannot begin or continue due to (1) threats to employers, employees, property, or when civil authorities recommend work not begin or continue; (2) public utility failures; (3) acts of nature, such as flood or fire; or (4) mutually agreed-upon work shift swaps or coverage among employees. While the San Francisco ordinance (under San Francisco Police Code, Article 33G, Section 3300G.4(e)) does not require employers to pay predictability pay for employer-initiated changes that result in overtime hours worked, the Emeryville ordinance does not contain a similar exception.
Offer of Work to Existing Employees
Prior to hiring new direct or contracted employees, a covered employer shall first offer additional hours or work to existing, qualified, part-time employees. An employer retains the discretion to divide the additional hours of work among part-time employees so long as that method does not discriminate based on a protected category (including family care obligations) or Affordable Care Act requirements.
An employer’s offer of additional hours must be in writing or posted in a conspicuous location or internal website. Employees have 72 hours to accept additional work expected to last more than 2 weeks, and 24 hours to accept work expected to last 2 weeks or less. Employers must retain records of written offers of additional hours for at least three years.
“Clopening” refers to the practice of working a closing evening shift followed by an early morning opening shift. An employee has the right to decline hours that occur less than 11 hours after the end of their previous shift. If an employee works these hours, they must be compensated at one and a half times their regular rate of pay. An employee also has the right to request a modified work schedule and employers are prohibited from retaliating against employees for making this request.
Notification and Enforcement
Employers must provide new employees a notice of this ordinance at their time of hire. Employers are also prohibited from retaliating against employees who make or participate in a complaint to the City of Emeryville.
The City of Emeryville may investigate and informally resolve any complaints. The city may also issue fines for failure to comply with these requirements, as well as order reinstatement, civil penalties, unpaid wages plus interest, and reimbursement of the city’s costs and attorneys’ fees.
Issues and Unanswered Questions
The Emeryville ordinance calculates predictability pay based on an employee’s “regular rate of pay” as calculated under federal law. An employee’s regular rate of pay includes all non-discretionary payments, such as bonuses, commissions, or other payments. The San Francisco ordinance, however, under Rule 4.1 of the Final Rules Implementing the Formula Retail Employee Rights Ordinance, calculates regular rate of pay based on total earnings in base wages plus commissions or piece rates for the prior calendar year or, when the employee does not have a prior calendar year’s amount of work history, the calculation is based on total earnings and hours worked from the date of hire. Employers with operations in both cities should ensure they are performing the regular rate of pay calculation in compliance with the applicable law.
There is no exception to the predictability pay requirement when schedule changes are due to disciplinary reasons. For example, if an employer were to send an employee home for misconduct, that employer would owe the employee predictability pay related to this schedule change. The City of Emeryville indicated that this exception was in previous versions of the ordinance, and we hope that it will clarify this issue in its forthcoming enforcement regulations.
The City of Emeryville is in the process of scheduling stakeholder meeting as well as drafting enforcement regulations. We will provide a summary of the enforcement regulations as soon as they are released as well as a link to the City of Emeryville’s model notice.
The Trump administration’s tough rhetoric and early aggressive actions on immigration promise a period of increased worksite enforcement. With the administration’s strong statements against illegal immigration and abuses of the immigration system, including an executive order calling for 10,000 new U.S. Immigration and Customs Enforcement (ICE) agents, employers can expect an increased number of audits, raids, and investigations. Given this added scrutiny and the increased prospects of a fine or other penalty, employers may want to know their rights in the event of a worksite visit, and to review and update their protocols for responding to such visits.
Law enforcement officers will not assert an employer’s rights on the employer’s behalf. Therefore it is important that employers be aware of their rights and be prepared to assert them in the event of a site visit.
- Once a company representative becomes aware of a worksite investigation or raid, swiftly notifying in-house legal counsel or an appropriate corporate officer can help the employer to preserve its rights. Note that a government official with a warrant is not required to wait for counsel to begin executing the warrant, so time will be of the essence when trying to stay on top of the situation.
- If an officer is conducting a site visit to obtain I-9 records, unless the officer is executing a search warrant, the employer has the right to three days’ notice prior to turning over I-9 documents.
- An employer has the right to deny officers permission to access non-public areas of the employer’s property absent a valid warrant.
- If the officer is in possession of a warrant, the employer has a right to review the warrant to verify its validity and scope (e.g., Is it signed by a court? Has the warrant expired? What are the locations to be searched and items sought?).
- Warrants apply only to law enforcement officials; an employer has the right to refuse media or news reporters access to the facility.
- If an employee is to be interviewed as a representative of the employer, the employer has the right to have counsel present during any such questioning.
- Employers may benefit from taking detailed notes of all activities being performed by the visiting government officials. If possible, employers may even wish to take video recordings of the officers’ activities. The officer may insist that making recordings is not permitted; however, in many jurisdictions, employers do have that right as long as they are not interfering with law enforcement operations.
- A helpful practice during a worksite investigation is to obtain the lead officer’s business card or contact information.
Preparing for a Site Visit
Employers that take proactive steps to fully develop policies and procedures to follow in the event of a worksite inspection will be better prepared to effectively assert their rights and protect their interests.
Designate an Immigration Compliance Officer. One of the key proactive measures an employer can take in anticipation of a worksite audit or raid is to designate an immigration compliance officer as a central point of contact for law enforcement agencies in connection with any worksite enforcement activities. An immigration compliance officer has three key responsibilities in the event of a site visit by immigration enforcement officers: first, to serve as a crucial point of contact between the company’s legal team and its immigration counsel; second, to coordinate between the legal team and site personnel to ensure that local personnel behave in a manner that is compliant with the law while also preserving the employer’s rights; and third, to be familiar with the company’s immigration records and procedures so he or she is able to respond to basic government questions in the absence of counsel.
Train Personnel Who Interface With the Public. Another good practice is to train personnel who may encounter an immigration enforcement officer at an employer site (typically a receptionist, cashier, or site manager) to request a copy of the officer’s credentials (i.e., badge and business card), not to disclose any information, and to direct all inquiries and requests for site access to the immigration compliance officer. Employers may also wish to consider designating primary authority for granting access to facilities or documents to the immigration compliance officer. Despite the desire to be helpful, employees will best serve the company’s interests by being polite and respectful while firmly adhering to this standard procedure.
Develop Practical Standard Operating Procedures and Guides. The stress of a site visit may cause otherwise capable employees to make less than optimal decisions or ill-advised statements to officers. Whether this stress is caused by the shock and awe of a full-scale ICE worksite raid or the mere intimidation of being questioned by a federal agent, it can present risks for employers. Having well-thought-out field guidance prepared in advance may be the deciding factor in effective preservation of employer rights.
Practical field guidance that employers may wish to consider include a list of “dos and don’ts” and a list of steps to follow when immigration officers appear on-site. These guides can anticipate real-world situations that may arise. (What if an officer appears to be detaining employees for an extended period of time? What if an officer has no warrant but insists on accessing the site anyways? What if an officer asks about a specific employee? What if an officer is simply hanging around the parking lot and questioning employees? What if an officer appears to be exceeding a search warrant?) There are many ways a site visit could take an unexpected turn, and employers may want to be prepared for these possibilities.
Clean House and Keep It in Order. The best defense is full compliance. As part of a regular compliance best practices regimen, many employers conduct regular in-house I-9 audits (at least annually) to ensure that their I-9 forms are properly completed, retained, and corrected as applicable. Employees responsible for I-9 completion may benefit from regular training on I-9 procedures to help them keep abreast of the latest changes to the I-9 forms and rules. A company I-9 compliance program is another tool that provides guidance to employees who have I-9 responsibilities.
By ensuring proper I-9 completion (including following all correct procedures for completing I-9 forms), an employer not only reduces its risk of monetary penalties from paperwork violations but likewise reduces the risk of penalties arising from employment of an unauthorized worker.
Many changes have occurred in recent months, including: increased I-9 penalties, the issuance of a new Form I-9, and now, the emergence of the Trump administration’s immigration agenda, which appears to carry a “zero tolerance” focus. In this new enforcement climate, employers may want to shore up their internal compliance procedures and familiarize themselves with their rights in the event of enforcement activities.
It may be hard to believe, but summer is less than six weeks away.
More than four out of every 10 employers plan to hire seasonal workers for the summer, according to a survey released last week by the job search website CareerBuilder.
If you are one of them, be sure you consider some of the potential compliance challenges that can arise when hiring summer help.
Will you be hiring minors? If so, it’s important to bear in mind that federal law and most state laws restrict the hours during which minors may work, including:
- The maximum number of hours and/or days a minor may work per week;
- The maximum number of hours a minor may work per day; and
- Certain timing restrictions such as the times of day during which minors may work and any restrictions forbidding a minor from working while school is in session.
Many child labor laws also forbid minors from working in certain occupations, require employers to maintain proof of age for all employees, and more.
Almost all interns should be classified as employees. As a result, you usually can’t just pay them with “valuable real-world experience”; you have to pay them cold, hard cash – the applicable federal, state or local minimum wage, whichever is highest, for all hours worked. In very rare cases in which an internship meets certain very strict criteria, it’s possible to have an unpaid internship. If you do, be sure to follow these steps.
Most federal and state employment laws include coverage thresholds. These laws do not apply to smaller employers, depending on their size. A few laws exclude summer hires and other temporary employees from their coverage thresholds. For example, the federal Family and Medical Leave Act applies only to employers that have employed 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year. But under most other laws, summer hires could mean the difference between having to comply with a law and not.
If you’re hiring summer help from a temporary staffing agency, don’t forget that there is a possibility you could be considered a joint employer under a variety of employment laws. In fact, the Occupational Safety and Health Administration says that “staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers – including, for example, ensuring that OSHA’s training, hazard communication, and recordkeeping requirements are fulfilled.”
Should you have any questions, please contact her HR Representative at 925-556-4404.
As we recently reported regarding the City of Los Angeles , both the City of San Diego and the California Department of Labor Standards Enforcement (“DLSE”) have updated their “Frequently Asked Questions” (“FAQs”) related to the respective local and state sick leave requirements. Below are some of the more salient points from each.
San Diego Earned Sick Leave
Similar to the City of Los Angeles’ recent changes, the City of San Diego updated its FAQs related to the City’s earned sick leave ordinance as applied to employees who are “salaried” and not “entitled to payment of minimum wage” by stating that they are not entitled to earned sick leave under the ordinance. Presumably, such employees may include those who are exempt “white collar” employees.
Regardless of coverage under the San Diego ordinance, employers still must comply with state law, which mandates provision of sick leave to nearly all employees.
California State Paid Sick Leave
The DLSE issued additional FAQs regarding the state law. Specifically, these updated FAQs address questions regarding “grandfathered” paid time off policies (or PTO plans in effect prior to January 1, 2015), rates of pay, and the impact of state law on employer attendance policies.
- Grandfathered Plans
The FAQs elaborate on how a “grandfathered” PTO plan will comply with state law. These further criteria include:
(1) the existing policy or plan makes an amount of paid leave available that could be used for at least as many paid sick days as required under state law; and
(2) that satisfies one of the following criteria: (a) the time off may be used under the same or more favorable conditions as specified under state law; or (b) that the plan contains more favorable conditions to employees than required under state law (e.g., provides more sick days or a more favorable accrual rate, etc.).
Please note these criteria are in addition to other accrual requirements set forth in the statute and earlier FAQs.
- Rate of Pay
The FAQs confirm that the state law does not impact how employers must compensate employees under existing PTO plans for time that is taken off for purposes other than paid sick leave, e.g., vacation, etc.
- Attendance Policies
The FAQs address the impact of state paid sick leave on employer attendance policies. According to the FAQs, if an employee has accrued or available sick leave, an employer’s attendance policy cannot assign an “occurrence” or apply “points” for an absence covered under state law.
Moreover, if an employee does not have any accrued or available paid sick leave and if the employee has an unscheduled absence for a reason covered under state law and which otherwise violates the employer’s attendance policy, state law does not prohibit the employer from giving the employee an “occurrence” for such absence. Importantly, the FAQs provide that state law, “does not ‘protect’ all time off taken by an employee for illness or related purposes; it ‘protects’ only an employee’s accrued and available paid sick leave as specified in the statute.
Clients should review their policies and practices and if you should have any questions, please contact your HR Specialist at 925-556-4404.