Tag Archives: DLSE

NEW GUIDANCE: California DLSE Updates Its Position On Rest Periods

The California Department of Labor Standards Enforcement (DLSE) recently published updated guidance materials (Rest Periods/Lactation Accommodation) relating to the 10-minute rest period. 

These new materials re-emphasize the DLSE’s previous position that employees must be relieved of all duty during rest breaks and further clarify that employees must be permitted to travel off-site during their ten-minute rest breaks. However, even with this new position, the DLSE did not that “as a practical matter, however, if an employee is provided a ten-minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.”  In addition to the foregoing, the DLSE’s new materials clarify that employers are prohibited from requiring employees to monitor pagers or radios during rest breaks.

The updated guidance materials align the DLSE’s position on rest periods with the California Supreme Court’s 2016 decision in Augustus v. ABM Security Services, Inc. (discussed in our previous article “Gimme A Break, California – A New Look at California Rest Periods”).

NEW LAW: California MINIMUM PAY FOR EXEMPT COMPUTER PROFESSIONALS AND HOURLY-PAID PHYSICIANS TO INCREASE IN 2018

The California Department of Labor Standards Enforcement (DLSE) recently announced that the minimum pay requirements for exempt computer professionals and hourly-paid physicians and surgeons will increase effective January 1, 2018 as follows:

  • Exempt computer professionals must be paid at least $43.58 per hour, or a minimum salary of $7,565.85 monthly or $90,790.07 annually to be eligible for the professional exemption from overtime
  • Hourly paid physicians and surgeons must be paid at least $79.39 per hour to be eligible for the professional exemption from overtime

It is recommended that employers who employ these type of employees review the compensation levels of these employees and verify that their compensation meets the new minimum pay rates in order for any exemption from overtime to be retained.

California Clarifies its paid sick leave frequently asked questions

The California Department of Labor Standards Enforcement (“DLSE”) recently published additional FAQs relating to the California Paid Sick Leave law. These new FAQs address questions regarding:

  • “Grandfathered” paid time off policies (or PTO plans in effect prior to January 1, 2015);
  • Employee rates of pay, and
  • The impact of state law on employer attendance policies.

Grandfathered Plans

With respect to “grandfathered” plans, the FAQs explains how a “grandfathered” plan complies with the paid sick leave law. This occurs when the “grandfathered” plan meets all of the accrual requirements set forth in the paid sick leave law, plus the following two criteria:

  1. The existing policy or plan made an amount of paid leave available that could be used for at least as many paid sick days as required under the new law, and
  2. The paid leave could be used under the same conditions as specified in the new law, or that had conditions more favorable to employees, (i.e., that provided more sick days than created under the new law, or that had a more favorable accrual rate, etc.)

If all of these criteria are met, then the employer is allowed to continue to use that existing paid time off plan in order to satisfy the paid sick leave requirements of the new law.

Rates of Pay

With respect to employee rates of pay, the FAQs clarify that under a grandfathered plan, the paid sick leave law does not change how employers compensate employees for paid time off under that time when time off is take for purposes other than California paid sick leave.

Attendance Policies

With respect to attendance policies, the FAQs clarify that employers are prohibited from disciplining employees for using accrued paid sick leave. Specifically, for employers who have an attendance “points” policy, employers cannot assess “points” against an employee for an absence that is covered under California law (including the California paid sick leave law

In addition, the FAQs address what happens when an employee has exhausted his/her California paid sick leave. If an employee does not have any accrued or available paid sick leave, (e.g., if the employee has already used all of his or her accrued and available paid sick leave under the employer’s policy, including as consistent with Labor Code section 233), and if the employee has an unscheduled absence that would otherwise violate the employer’s attendance policy, the paid sick leave law does not prohibit the employer from giving the employee an “occurrence” for such absence, even if the employee was actually sick and/or could have used paid sick leave for the absence if he or she had any such leave accrued.

The paid sick leave 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.

Take home for employers

It is recommended that all California employers review the updated FAQs and verify that their policies and practices comply with the new guidance.

DLSE releases FAQs on California’s new minimum wage requirement

The California DLSE recently released new FAQs (“New Minimum Wage Phase in Requirement 2017-2023 SB 3 —  Frequently Asked Questions“) addressing California’s new tiered minimum wage system.

Among the topics addressed are two important questions:

  1. What employees are counted for the 26-employee threshold?
  2. If an employer’s headcount increases above 25 employees, at what point is the employer required to pay the higher minimum wage.

With respect to the first question, the DLSE clarifies that all workers who are not “bona fide” independent contractors are considered employees and “count” towards the 26 employee threshold.  This includes exempt employees, salaried executives, part-time workers, minors, and new hires.  It also includes any workers who work both in and outside California.

NOTE:  California has many cities that have its own local minimum wages.  In these ordinances, the city might have a different standard for “counting employees”.  For example, the City of Los Angeles’ minimum wage ordinance counts only individuals working in L.A. at least two hours per week; while the city of Pasadena counts all employees in the United States.

With respect to the second question, the DLSE clarifies that the headcount is determined on a per pay period basis.  In other words, if the employee headcount increases to 26 employees in one pay period, then the minimum wage for that pay period (and any other pay period when employee headcount is above 25 employees) is the “large employer” minimum wage.

NOTE:  This implies that an employer can fluctuate minimum wage (i.e. drop minimum wage to the “small employer” minimum wage) if the employee headcount falls below 26.  While that may be permissible, it is not recommended because of the confusion it will cause payroll and employees and also because of the potential negative impact on employee morale.

Take Home For Employers

It is recommended that all California employers review these FAQs and verify that they are complying with all aspects of California’s minimum wage laws.

As mentioned above, several cities have enacted their own local minimum wage laws.  It is recommended that employers check both state and city laws when determining minimum wage for their employees.

Finally — Guidance Regarding On Duty Meal Periods!

In a recent decision (Driscoll v. Granite Rock Company), the California Court of Appeal (finally) provides guidance to California employers about on duty meal periods.

In California, an on duty meal period is permissible only when:

  1. The nature of the work prevents an employee from being relieved of all duty and
  2. There is a written agreement between the employer and employee that an on-the-job paid meal period is agreed to.

For several years, the only guidance available regarding the nature of work exception was provided by the DLSE, who opined that the nature of work exception is a limited exception and is narrowly construed.  In fact, the DLSE has said that it only applies in extreme circumstances (like a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site) where it is simply impossible for the employee to take a meal period because there is no one available to relieve the employee (i.e. because the employee is working alone).  However, with this new ruling, employers have more guidance on when an on duty meal period may be permissible.

The Facts

In Driscoll, the plaintiffs were concrete mixer drivers who were provided the option of signing an on-duty meal period agreement, which they all signed.  Prior to signing the agreement, the plaintiffs were also told that if they did not sign an On-Duty Meal Period Agreement and were asked to work through a meal, they would receive one hour of special pay.  Finally, the plaintiffs were also notified of their right to a 30-minute, off-duty meal period.

The plaintiffs ultimately filed a class action lawsuit against their employer for failure to provide the required meal periods.  The company’s asserted defense was the on duty meal period agreement.

The Case

The court found that the employer’s on-duty meal period agreements were lawful and specifically noted that the employer’s “policies regarding meal periods were particularly appropriate in the context of the ready mix concrete industry.”

The opinion used the Brinker decision’s discussion relating to industry practices to support this finding — specifically citing “What off-duty meal practices that will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.”

Relying on Brinker, the Court concluded that “the issue of different industry practices is a factual determination. Here, while on the job, mixer drivers manage a rolling drum of freshly batched concrete at any given time throughout their work day. When a driver is able to take a duty-free lunch period is dependent on the state of the concrete in his or her truck, and the nature of the construction job to which the driver is attending.”

Take Home for Employers

While this case does show support for on duty meal period agreements, employers are advised to proceed with caution before trying to implement on duty meal periods in their own workplace.  The Court made it very clear that the permissibility of a particular on duty meal period arrangement is very fact-specific and is determined on a case-by-case basis.  Before implementing an on duty meal period, it is recommended that employers carefully analyze the positions for which an on duty meal period is sought and seek the guidance of an attorney before taking any action.

Minimum Pay for Exempt Computer Professionals and Hourly-Paid Physicians to increase in 2017

The California Department of Labor Standards Enforcement (DLSE) has announced that the minimum pay requirements for exempt computer professionals and hourly-paid physicians and surgeons will increase effective January 1, 2017 as follows:

  • Exempt computer professionals must be paid at least $42.35 per hour, or a minimum salary of $7,352.62 monthly or $88,231.36 annually
  • Hourly paid physicians and surgeons must be paid at least $77.15 per hour to be eligible for the professional exemption from overtime

It is recommended that employers who employ these type of employees review the compensation levels of these employees and verify that their compensation meets the new minimum pay rates in order for any exemption from overtime to be retained.

New to California – Employee Wage Complaint Hotline

On August 31, 2016, the California Labor Commissioner issued a press release announcing the launching of its online Employee Complaint “Hotline” that California employees can access to lodge a complaint with the Labor Commissioner about their employer’s wage payment practices. As a part of this new system, employees have the ability to complete an online form to report an employer’s perceived wage and hour violations.

While this system does not allow an employee to file a claim for the employee’s own wages (that must still be filed separately), it does give employees the ability to quickly alert the Labor Commissioner of potential unlawful wage and hour practices and could lead to more investigations by the Labor Commissioner into California employers’ wage practices.

In light of this new process, it is important for all California employers to keep up-to-date on California’s changing wage-hour requirements and to take the necessary steps to ensure that their practices are compliant with California law.

DLSE Sheds Some Light On California’s Equal Pay Act

Are you confused about the recent amendments that were made to the California Equal Pay Act? Some clarity is now available.

Under the California Equal Pay Act, employers are required to pay employees of both sexes the same “wage rates” for “substantially similar work,” unless the employer proves that the wage differential is based on

  1. Seniority,
  2. Merit,
  3. A system that measures earnings by quantity or quality of production, or
  4. Some other bona fide factor other than sex, such as education, training or experience.

Sensing confusion on the part of California employers, the Department of Labor Standards Enforcement (“DLSE”) has released Frequently Asked Questions regarding the California Equal Pay Act (entitled “California Equal Pay Act: Frequently Asked Questions”). While the main focus of the new FAQs is providing an overview of the new law, the FAQs also define two key terms, which will assist employers in performing a pay equity analysis.

As stated above, under the California Equal Pay Act, employers are required to pay employees the same wages for “substantially similar work” – regardless of the employee’s gender. Yet, the statute left the phrases “substantially similar work” and “working conditions” undefined. The new FAQs define these terms.

According to the FAQs, “Substantially similar work” refers to work that is mostly similar in skill, effort, responsibility, and performed under similar working conditions.

  • Skill refers to the experience, ability, education, and training required to perform the job.
  • Effort refers to the amount of physical or mental exertion needed to perform the job.
  • Responsibility refers to the degree of accountability or duties required in performing the job.

Working conditions means the physical surroundings (temperature, fumes, ventilation) and hazards.

Finally, the FAQs remind employers that an employer may not prohibit an employee from:

  • disclosing his or her own wages,
  • discussing the wages of others,
  • inquiring about another employee’s wages, or
  • aiding or encouraging any other employee to exercise rights under the Equal Pay Act.

In addition, an employer may not retaliate against an employee for engaging in such conduct.

Take home for employers

Prior to performing a pay equity analysis, it is important to review the DLSE’s FAQs and the provisions of the California Equal Pay Act. Remember, the pay equity analysis is a fact-specific analysis that must be performed on a case by case basis. You are strongly encouraged to consult with an HR Professional or qualified legal counsel for assistance in performing this analysis.

Could An Earlier Release Date Of The New FLSA Regulations Be On The Horizon?

In previous blog entries (DOL Announces Intended Release Date for New Overtime RuleDOL Pushes Up Anticipated Release Date of New Overtime Rule, and ETA Of DOL’s New Overtime Rule — July 2016), we reported that the US Department of Labor had announced it anticipated that the new overtime rule would be published either as early as “spring of 2016” or by “late July 2016.”  However, recent events may result in an earlier release date.

In an unexpected move, the DOL provided the proposed new overtime regulations to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget for review on March 15, 2016.  The review is required because the impact of the proposed regulations would have on the US economy is “economically significant” (i.e. would have an annual impact of over $100 million).

An OIRA generally takes about 30 days.  This could result in an earlier publication of the new regulations — possibly in late April/early May, rather than the previously announced July release date.

With the release date potentially closer,  it is strongly recommended that employers start thinking about how this change impacts their current exempt workforce as soon as possible.  As with any changes to employee classification, we recommend that you consult with an HR Professional or qualified legal counsel about how best to present these changes to the affected workforce.

CA Dept of Industrial Relations Updates Its Paid Sick Leave FAQs

The California Department of Industrial Relations recently updated its online Frequently Asked Questions regarding California Paid Sick Leave to reflect the requirements relating to paid sick leave that went into effect with the passage of AB 304 on July 13, 2015.

As explained in detail in an earlier article, AB 304 amended the Healthy Workplaces, Healthy Families Act of 2014.