2008 brings new notice obligations, new leave rights, and new wage rates (higher and lower) to California employers.
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By Christopher W. Olmsted, Esq.
One More Leave Of Absence Right For Californians
Military Spouse Leave – AB 392
California created a new employee leave of absence in 2007. This one is for spouses of certain military personnel.
Your company is covered if you employ 25 or more employees. Employees who work at least 20 hours per week and who are spouses of a member of the military must be provided up to 10 days of unpaid leave when the spouse is on leave from active duty in the U.S. Armed Forces, Reserves or National Guard. Employees must give two days’ notice and provide appropriate written documentation.
In order to properly administer this leave, you will need to take three steps.
1. First, you need to know a few more details about eligibility. See our November 2007 Update for those details.
2. Second, you need a Military Spouse Leave Checklist. We’ve got that covered too. Email Chris Olmsted at cwo@barkerolmsted.com and ask for your free checklist.
3. Third, you will need a request form for employees to complete. We also have a free request form available.
Minimum Wage Increase
The state’s minimum wage will increase from $7.50 to $8.00 an hour on January 1, 2008, as a result of legislation passed last year.
Remember that the minimum wage increase affects other wage rates, including:
White Collar exemption minimum salary requirement increase. The minimum salary is now $640/week, $2,773.33/month, or $33,280/year.
Commission Salesperson exemption rate increase. Inside sales persons paid on a commissioned basis must earn at least 1.5x the state minimum wage, which as of January 1, 2008 is now no less than $12 per hour per week.
Tool wage rate increase to $16/hr. Where an employee must provide his or her own tools or equipment that are customarily required by the employee’s trade or craft, the employee must earn at least two times the minimum wage.
Meal and Lodging Credits. The maximum credits have increased. For more information, review the IWC Minimum Wage Order.
Make sure that you have posted the latest minimum wage information. click here for the state's free poster.
Keep Both Hands On The Wheel
SB 1613 - Cell Phone Usage While Driving
Effective July 1, 2008, Senate Bill 1613 provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. A violation of this law will be punishable by a fine of $20 for a first offense and $50 for each subsequent offense.
The law includes an exception where a person uses the cellular telephone to contact a law enforcement agency or other public safety entity for emergency purposes.
Until July 1, 2011, this prohibition does not apply to a person driving a motor truck or truck tractor, an agricultural vehicle, tow truck, or a commercial vehicle, when using a digital 2-way radio service that utilizes a wireless telephone that operates by depressing a push-to-talk feature as long as it does not require immediate proximity to the user's ear.
In order to minimize liability issues arising from employees using cell phones on the road while in the course and scope of employment or while taking work-related calls, employers should implement a policy that requires all employees to use “hands free” devices while driving on company business. Alternatively employees could be prohibited from using cell phones while driving.
(Note: Got Teenagers? Drivers under 18 are absolutely prohibited from using cell phones while driving under a separate bill, SB 33.)
Stop Using SSNs on Pay Stubs
SB 1618 - Changes to Itemized Pay Statements
Effective January 1, 2008, employers are prohibited from including any more than the last four digits of an employee’s social security number on the employee’s itemized pay stub. Alternatively, employers may use an employee identification number.
A California Rarity: Decrease In Minimum Rate
SB 929 – Reduced Rate For Computer Professional Exemption
When is the last time that you saw a minimum wage rate decrease? Before you say “never,” take note of SB 929. It decreased the minimum rate for exempt computer professionals.
Certain computer programmer professionals are exempt from overtime if they are paid a minimum hourly rate and meet certain other criteria. The bill reduced the hourly rate to $36 per hour from $49.77. According to the DLSE, the new rate becomes effective January 1, 2008. It is subject to an annual cost of living increase in the fall of 2008.
Why the reduction? The computer professional exemption and applicable minimum hourly rate was established in 2001 during the “dot com” bubble. The lower rate takes into account the subsequent dot com bust, and the ensuing decline in compensation for computer professionals.
(Note: the exemption does not apply to any IT professional; seek legal advice before classifying a worker under this exemption—mistakes are costly!)
Workers' Compensation Reform
SB 869 – Workers’ Compensation Enforcement
This bill gives the DLSE more discretion with respect to prioritizing enforcement actions against employers failing to secure workers’ compensation insurance. Additional funding is available to track employers and bring enforcement actions. Employers should expect to see more enforcement actions as a result of this new law. Companies misclassifying workers as independent contractors are particularly vulnerable. Now is a good time to review your classifications and insurance coverage.
SB 316, AB 338 AB 1073, and AB 1269 – Workers’ Compensation
These bills made miscellaneous minor changes to workers’ compensation law. AB 338 extends the time an employee may receive aggregate disability payments as a result of a workers’ compensation injury from two to five years.
Health Care Law
SB 812 – Alternative Work Weeks for Pharmacists
Members of this profession can now take advantage of the somewhat more flexible alternative work-week provisions of Wage Order 4 instead of 7.
New Wrongful Termination Cause of Action
AB 632 - Health Care and Whistleblower Protection
This bill prohibits a health facility from discriminating or retaliating against any patient, employee, member of the facility's medical staff or any other health care worker of the facility because that person has (1) presented a grievance, complaint or report to an entity or agency responsible for accrediting or evaluating the facility or to any other governmental agency; or (2) has initiated, participated or cooperated in an investigation or administrative proceeding related to the quality of care, services or conditions at the facility.
The bill creates a new cause of action for health care employees, including physicians, to sue their employers. Aside from typical damages, the employee can recover attorney fees. Critics complain that this new law will sabotage the peer review process.
IRS Standard Mileage Rate for 2008
The IRS announced the 2008 standard mileage rate: 50.5 cents per mile, $0.02 increase over the 2007 rate. The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The increase is no surprise given the rising cost of gas.
New Form I-9 Effective Immediately
The U.S. Government has published a new Form I-9, which all employers must begin using immediately. Download the form for free, and review FAQ regarding its use.
New Sexual Harassment Training Regs
On August 17, 2007, the Fair Employment and Housing Commission gave final approval to regulations governing mandatory sexual harassment prevention training for supervisors. Get our free summary of the regulations by emailing cwo@barkerolmsted.com.
Employers with 50 or more employees must provide legally compliant training to all supervisors at least once every two years. To schedule a training session, contact Chris Olmsted.
New Notice Must Be Delivered January 2008!
AB 650 Employer Required Notification:
Earned Income Tax Credit
The California legislature has added yet another notice that must be given to employees. Effective January 1, 2008, California employers who are required to provide unemployment insurance must notify all employees that they may be eligible for the federal Earned Income Tax Credit (EITC). For details on compliance, click here.
New EEO-1 Form
Employers may have noticed some changes in 2007 when filing their annual EEO-1 Report. A new form became effective September 30, 2007. The EEO-1 form has two distinct changes from years past: (1) the “Officials and Managers” category is now divided into two separate categories; and (2) “Native Hawaiian or Other Pacific Islander” and “Two or More Races (Not Hispanic/Latino)” have been added to the racial classifications list.
Coverage has not changed; covered businesses include: (1) Employers with federal government contracts of $50,000 or more and 50 or more employees; and (2) Employers who do not have a federal government contract but have 100 or more employees.
For more FAQ: http://www.eeoc.gov/eeo1/qanda.html and http://www.eeoc.gov/eeo1/qanda-implementation.html
This article presented is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2007 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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