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Introduction to Wage & Hour Law Compliance

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Introduction to Wage & Hour Law Compliance

In this introduction to wage & hour laws, you will learn about employer requirements for proper classification, work time management, and payment of their employees. We will discuss requirements for meal and rest periods, work time and overtime, timing and methods of payment, and expenses. We will also review what you need to know about the recently-enacted Pay Transparency Act.

Transcript

Hello everyone and welcome to Wage and Hour Training. This is being recorded in January of 2023. As most of you guys that deal with wage and hour probably know every year is a little bit different. Sometimes in the middle of the year, things change. Sometimes towards the end of the year, things change, but there's always new developing things happening. So today we're going to talk a little bit about wage and hour. I'm definitely going to talk a little bit about states. I think there's a lot of state activity generally that's happening around the nation. I like focusing on California a lot because I feel like California often paves the way for other states to do unique things. But of course, if you're in New York, you're in Oregon, you're in Washington or some other very progressive states, you will also see some very vigorous changes. So we're going to talk a little bit about some very interesting topics today. So a little bit about our agenda today. We're going to talk about what are meal and rest periods. And, you know, this really did start from California. We're going to really talk about California meal and rest period law. We're going to talk about work time. And many of you guys may have recently been updated about issues with rounding time or talking about work time. So we're going to talk a little bit about rounding and how that affects work time. We're going to talk a little bit about paying over time. What does it mean to pay overtime? What is the regular rate of pay that needs to be calculated? We're going to be talking about timing and method of payment, how people need to be paid. We're going to briefly talk about expenses, which is a big topic for COVID 19. There was a big transition for people working from home and what could be expensed and what could not be expensed. So expenses have become a big issue and there's a lot of litigation pending on expenses. Finally, we're going to talk about Pay Transparency Acts. California recently adopted theirs. They're joining several other states that have it, several other locales that have it. And it's a new incoming thing that we're probably going to see in many other states going forward as well. So with that, let's get started with meal and rest periods. So let's talk a little bit about California's meal and rest period. Act Generally, an employee must be provided a first meal period before the employee works more than 5 hours. So what does that exactly mean? Well, it means if the employee starts at 6:00 AM, the first meal period must begin before 11 a.m.. If it's 1101, you're too late. So it means before that fifth hour begins, an employee must be provided a second meal period before the employee works more than 10 hours. So what does that mean? It means before that 10th hour begins. And keep in mind that the 10 hours, it may also encompass that meal period, if that meal period is on the clock. So you kind of have to be very careful with how you are recording your meal periods. How are you actually showing that an employee is working those 10 hours if they're there for 10 hours? Tentatively, you may have to provide them that second meal period if you've got any variables with those issues. The biggest issue that we see is not for employers providing the meal period or providing a second meal period. It is documentation. It is when the employer fails to properly document that the employee is taking their meal periods on time, it is one they have inaccurate issues. For instance, if you've got a rounding policy and we're going to talk about rounding a little later in California, it's recently been struck down and employers now have compliant policies if they are rounding. But at one period of time before this recent activity with the courts, employers could actually round and what they would do is they would round up by 5 minutes. Well, if they have their employees take the meal period at the five hour mark and not before really the five hour mark. They were running over the 5 hours because they rounded up the time. So there was always a dispute with the actual time versus the rounded time and how all of that would play in. So employers have to be very careful. How are they documenting? They have to really break that down to make sure that their time records show that employees are being provided a meal period before the employee works more than 5 hours if they really do not want that litigation. Documentation is absolutely key with wage and hour. So off duty meal period requirements. A meal period is compliant if the meal period is at least 30 minutes long. Well, what if you have donning and doffing that occurs after that 30 minutes long? Well, in some states there's no de minimis standard. Some states allow for de minimus time, but some states don't. For instance, California does not allow for de minimus time. That means even if the employee is spending 30 seconds, 10 seconds, 15 seconds off the clock removing their gear, that is reducing from that 30 minute long time period. So what you really need is employees removing their gear, then clocking out, then getting the full 30 minutes to be able to clock back in. And you want to have a little bit of leverage that if you have multiple people clocking in at the same time, that the employee should not have to stand in line early enough to get back there to clock in so that they reach that 30 minute long, they reach those 30 minutes so they don't get docked if it's 35 minutes. If there's a line, you need to kind of build in a little grace period to make sure that those employees have at least 30 minutes of a full break. And that goes with any type of state that you're looking at, no matter what the requirement is. You really have to analyze what's happening on the ground. Are these employees actually getting that full time period duty free? A lot of the time, our policies, procedures, minute things that are happening like aligned to clock out. If they're working in like, let's say, manufacturing or different situations like that, those things may actually prevent the employee from taking those full 30 minutes. That is opening your door to litigation, including class action claims. So it's very important that you look at your policies and you make sure that you take all preventative measures. You need to make sure that that employee is getting that full amount of time off. You really have to make sure the employees are relieved of all duty during that time. The employee should not be interrupted. You have administrative staff and they sit at their desk and eat, come up with signage that says I'm on break so they do not get interrupted. Otherwise, it's quite frequent that employees may be eating at their desk and they have someone walk by and that person interrupts them. Now we know with COVID, a lot of our break rooms were closed and that was one of the biggest issues with employees that were actually working on their desks. They were not able to take their full breaks because a lot of the time they didn't have signage or other things over indicating to other people do not interrupt me or they would have their email open and something would pop up, or they'd have Microsoft teams and a chat box would pop off. You really have to have a stringent policy that says if you're on break, do not work, and you've got to have proper signage and other things that employees can document, like put up their do Not Disturb sign or put out out to lunch on their team's record. That shows they should not be interrupted when they're having their lunch. It's important to note that an employee should be free to leave off the premise. If you have an employee that is stuck at their desk during their meal period, even if you are not interrupting them, they're not really duty free. They're still stuck at their desk. So it's really important to make sure they don't have to wait for things. They don't have to hold the fort down. They don't have to answer phones or anything of that sort while they're on on their meal break. Now we talked about documentation. Documentation is key. Meal period time timekeeping requirements are critical. Start and stop times of off duty meal periods must be recorded on time cards. There are some exceptions under law in certain states where they don't really have meal break requirements. You may not need to record it on time cards. But majority of states, we know federal law. We know there are mandates. There are some exceptions, like, for instance, for nannies and some people that do housework that you may not need to they can have an on duty meal period. Right. And in manufacturing, for instance, under the wage orders in California, you don't necessarily need to record time cards if everyone takes their meal breaks at the same time. But generally, stop and start and stop times of off duty meal breaks should be recorded on those time cards and they should be accurate. Meal punches cannot be rounded at any point. When time records show or show a short, late or missed meal period. There's a presumption that the employer failed to provide a compliant meal period. What does that mean? That means you're on the hook. So what does an employer need to do at that point? Well, the employer has to show that either the employee waived, voluntarily skipped, or they took a short or late meal period. If it is late or it's been skipped and there's no real explanation for it, the employer has to provide a premium for that missed meal period in most situations. Now, something to really think about in this situation. Some employers provide the premium no matter what happens because it's probably easier to pay the premium right now. Discipline the employee for violating the meal period policy and having some some showing that the premium was paid. There's no violation under wage and hour law. And in addition to that, we have a eliminated any other type of penalty assessment. We're also disciplining our employee that if they keep on trying to get this premium through the process, that they could be further discipline, they could receive a write up. Sometimes employers where they have employees that miss too many meal periods, they terminate them. Now, employees sometimes say, I don't want to have a meal period. Well, in that case, there needs to be a voluntary waiver form. And that can only happen in certain circumstances depending on the jurisdiction you're in. For instance, in California, it's only if the employee works 6 hours and they voluntarily sign a waiver form not to take that meal period within 5 hours. You can also do it for them to waive the second meal period so long as they're working between ten and 12 hours. But if they work 12 hours, they cannot voluntarily waive that second meal period. So there are limitations on what can be waived. Generally, if an employee voluntarily skips. Employers don't try to take that risk. They have to have something in writing. They have to have something that forms a basis that the employee is choosing not to not to take the break. And even then, in many cases, it's highly risky to do that. So documentation is key, showing that they do take proper meal breaks. And if they don't, exactly why they didn't take a proper meal break and how things should kind of go along those lines. Now, we're going to talk a little bit about California labor code. A meal period may be waived if a first meal period if it if there's less than a 6 hours in a workday, which is what I just mentioned. The second period will, is so long as the employee does not work 12 hours in a day and they actually have that compliant first meal period. So an employee can't waive both. Now, a lot of the time you may have employees that complain. You have to tell them, look, this is the law, this is what I've got to go by. I know you don't like the idea of maybe having one or two meal breaks in a day and you may not choose to eat during your meal break, but do something else. Look at your phone. Search the web, listen to music Stream a movie. I don't care. But the bottom line is I'm going to be extra cautious and not try to pay you a premium because you don't want to take a meal break. And it's very important to have those discussions with your employees that may be serial violators of the meal break policy. If you do not force the meal break, you have to pay that premium. Some employers just choose to pay the premium, but that's sometimes can be a very large added cost to all employers. So food for thought. All right. Well, health care employees, you know, that was we talked a little bit about nannies and other people and industries, but health care employees, like you can't have a nurse like say, hey, it's my break time. I'm getting out of the surgery ward right now. Right. So there is an exception for health care industry who work shifts in excess of eight total hours in a workday. They may voluntarily waive their right to one of their two meal periods. So we do have that option with the health care industry. So, you know, the good thing is that there are these built in values to wage an hour that can be looked at. So you've got some questions in relationship to your specific industry. It's important to talk to council to figure out what those boundaries are. What are those barriers? Generally voluntary waivers have to be in writing, signed by the employee and the employer. They may be revoked upon one day's notice. So if the employee comes back and says, I want to take mine tomorrow, you have to provide it. All time, including time taking an on the job meal must be paid. So any time that an employee is saying, okay, I'm going to be doing charting through my lunch because I've got to man the phones or I have to wait for this doctor to send in this record that's an on the job meal period. It's got to be paid even if that person's eating their food or they're just relaxing and they're not really doing anything except for waiting. That waiting is still considered work time. So who's in the health care industry? And, you know, challenging thing is we see these definitions change all the time. Depending if you're looking at wage an hour, you're looking at safety, you're looking at leaves. The definitions always change, right? And that's what makes it so difficult. So for those of you that have been dealing with COVID issues, don't automatically assume that it's going to be the same definition as we've been dealing under the CMS or other standards in the Labor code, depending on what industry you're at. And generally employees in the health care industry means any of the following employees in the health care industry providing patient care or employees in the health care industry working in a clinical or medical department, including pharmacists dispensing prescriptions and any practice setting or employees in the health care industry, working primarily or regularly as members of a patient care delivery team or licensed veterinarians. Why are all these people there? Well, really, because there are people that may be needed at any time, right, in that type of industry and generally with those industries of employees that need to work at any time, there is going to be some kind of labor code exception to to meal breaks, to rest breaks and things of that sort. Okay, so best practices, meal breaks. This is specifically related to California, but it does apply to many other states. California, of course, being the most stringent of of majority of these schedule meals well before the end of the fifth hour. I don't know about most of you guys. I usually can't even last to the fifth hour. So I understand that sentiment. Consider locking employees out of time slots until 30 minutes has elapsed. Now, keep in mind, if your employee has to stand in line to clock in and the line is 10 minutes long because you've got so many employees and only one time clock, you're still going to get a violation even if you lock the employees out until 30 minutes because they're standing in line while they're waiting to clock in. So there are still other considerations there. Even if you have this practice, you've got to have enough time clocks. You've got to have other practices that allow for employees to be able to clock in in a timely manner. So they really are duty free for those first full 30 minutes. Do not use auto deduct policies if you have an autodidact policy. It kind of creates a presumption that there may be violations and you need to have other measures that proves that employees actually take their meal breaks. A perfect example is like manufacturing, right? You've got an assembly line and there was a big siren that tells people you're on and you're off when the siren reaches. Even in that situation, unless you build in a little bit extra time for that siren to go off, you may be in violation for things like employees that need to dawn on and dawn off. Materials for employees that have have other types of issues like getting to their location before the buzzer starts because possibly traveling from where they are outside or from the break room or some other location to get to that location. They may have to do that before those 30 minutes are over. Right. So keep in mind, and they have to be at their specific spot within that 30 minutes, not within a time clock, within 30 minutes. So you really want to make sure that that time that they're spending walking from outside to their location or they're standing at their location for a minute waiting for the buzzer to restart that one minute could be considered work time where they're standing there waiting for the buzzer to start. So you really have to be careful about your policies. Autodidact policies are a bad idea, giving extra grace periods. Always a good idea to make sure you're not in violation. Do not place restrictions on employees or require them to monitor equipment. You kind of talked about this. Don't have an employee sitting there waiting for the phones or have an employee waiting for the delivery guy to come by, even if they're not required to do anything, they are still required to wait. That is a requirement under law. Ensure there's proper coverage. When you have enough people, you want to make sure you have enough staffing to be able to deal with those issues. You should have a backup. And when one person is taking a meal break that somebody else can cover the phones or watch the delivery guys and encourage your employees to leave the work area. You know, we we try to encourage a lot of people during COVID to to do different things, sit at their desk if they had to stay in in the workplace and they didn't want to go out. But now our cafeterias are back open, right, or break rooms are back open. Send your employees to the break rooms and tell your employees, go in the break room. Tell your employees go in in conference rooms. Tell your employees to get out. So long as you're not having any other safety issues. It's a great idea to tell employees to use those facilities. And also it's a great idea to tell your employees, Hey, why don't you go get some fresh air, Right? We encourage fresh air and exercise and taking a walk and and doing those things when, of course, weather permitted. So definitely food for thought about encouraging employees and giving them incentives, you know, doing something special in your break area, something fun for employees to do or having some kind of other things around the facility that encourage employees to get up from their desk and go somewhere else. So you don't have those violations is not a bad idea at all. Premium pay for missed meals. We talked about this, but a really unique thing that we have in California, as we do and many other states, as well as federally as concept of regular rate of pay. What is regular rate of pay? Well, it's it's basically whatever your pay is for that pay period. So if you have overtime pay, if you have anything else that can constitute as part of your pay, your regular rate of pay is not necessarily your hourly rate. So your regular rate of pay may change on an on a week to week basis. You have to have a way to be able to calculate that, to pay out the employee that amount for any penalties associated with meal breaks. A lot of the time employers make this mistake where they say, okay, this employee makes $20 an hour and they forget to calculate the other wages that the employee received to calculate the regular rate of pay. And they'll pay all the employees $20 an hour for that meal period. That's an issue. And that would be another violation that they did not receive proper wages if they receive their premiums and they were short, whatever that amount may be. And of course, the premium has to be paid whenever a meal period is not 30 minutes long, where the employee is not relieved of all of their duty. They're not able to go and do whatever they want, completely duty free, so they can't leave the premises or stuck somewhere or whenever. It's not timely. It's not within those first 5 hours. In that situation, a missed meal period would have to be paid out at the at the regular rate of pay. Okay. Let's talk a little bit about rest periods. And rest periods are a unique thing in California, too. Been very stringent. We know this law has been around for a long time. An employer must provide 10 minutes, net rest time. Well, does that mean you should probably have 10 minutes? Probably not. You need to build in a little bit more than that because again, you're having an employee and most of the time is not clocked in, clocked out. So you're not going to be dealing with so much of that issue. But let's say you've got an employee like on a manufacturing line and it's a flat 10 minutes. That person may have to walk back from wherever they are or stand in that same spot until the buzzer goes off or done off their equipment or do something else that doesn't allow them a full 10 minutes time of rest time. That can be a problem. So for each 4 hours of work or major fraction thereof. So here's a chart for you. So if someone works under 3.5 hours, they don't get a rest, period. If they work between 3.5 hours and 6 hours, they get one rest period. If they work between 6 hours and 10 hours, they get two rest periods. If they work between 10 hours and 14 hours, they get three rest periods. And if at any point, which hopefully not too many employees do this, they work between 14 to 18 hours. They get four rest periods. So once every 4 hours or major fraction thereof, they get a rest period. It has to be practical, as practical as possible to be in the middle of the shift. So let's say you have someone who works a six hour day and let's just not count the meal, period. Well, today the employee waived their meal period. So you want your employee to try to take that one breast break that they get somewhere between the second and third hour, the third hour being the middle of the shift. If someone is working an eight hour shift, they get two rest periods. So you want it to be set so that they take their first one between the first around the second hour of their shift. Then they have their meal break around right before the fifth hour and then they have another rest break somewhere around the sixth and one half hour of the shift. That's kind of how you want to stagger them. They are paid time. You cannot not pay your employees for rest periods. And rest periods do not need to appear on time cards. There's no requirement for that, which means you need to have a very compliant policy that specifically says when rest periods will be taken, that they will be provided and approximately when employees should anticipate to take them. For employees that don't take a rest period, there is no documentation supporting it. You definitely still want to show that you're advocating for employees to take these rest periods. So if you see someone who's not taking the rest period in, they're working through, it's important to have that documentation and record that documentation. So are saying I spoke with this person and reminded them that they should take the rest period. Between this time and this time. I noticed on this day they didn't take the rest, period. In a case like that where you say that you notice that the person did not take the rest, period. Some employers opt to again pay the premium to avoid liability, but generally reminding employees to take the rest period and forcing them at that moment when they come across them saying, okay, go take a ten minute now, I don't want to see you for the next 10 minutes. Go somewhere that is enough to kind of eliminate some of that risk. So really forcing telling employees, go take a ten minute. Advocating for it and trying to enforce it as much as possible. It's probably the best way for employers to limit liability. Now again, very similar to meal breaks. Rest periods must be completely relieved of all duty during during these breaks. Employees should not be. Uh, should not be doing other type of work. So if employees are using their work cell phones, checking email, probably not a good idea if employees are still on their radios for work. Probably not a good idea. The best practice is to allow employees to go off the premises and sometimes you've got people that like to smoke or other things like that. They may go. A lot of employees end up going and hanging out in their cars for 10 minutes, but promoting that type of conduct is great. Keep in mind, you know, sometimes and sometimes there's some safety issues that are associated with rest breaks, specifically with break rooms. So if you've got employees that need to be on the floor for a certain time, you have to be able to allow them to go to the restroom, for instance, and take those breaks. You have to have enough coverage. But in certain situations where, you know, a lot of your employees are using the restroom at the same time during their breaks and there are some limitations on them being able to take those restroom breaks and other situations. It's important to make sure that you allow for enough time for all employees to be able to do that. So you definitely need to kind of look at the entire circumference of what's happening in your workforce to see what employees are doing, what they're not doing, and develop some best practices to make sure you're enforcing the policy properly, that you're not going to end up resulting in a class action lawsuit or any other type of litigation or have any other complaints from that angle as well. So similar to wage and hour meal break violations. Resprayed premiums are also a big thing and employees do one hour premium pay for however many rest periods are not provided in a day. So if they miss two, it's two premiums. And again, the premium must be paid at the regular rate of pay. So these premiums can accumulate very fast work time. So what is work time? Well, work time is hours worked is a time during which an employee is strict subject to the control of the employer and at the time employee is suffered and permitted to work. That is definition under California. That is generally the definition everywhere suffered and permitted to work. So some ideas on recording work time, best practices of course. Back to California. California requires shift start and stop times on time cards start and stop of meal periods on time cards. Employees should review and approve time cards. If you have an employee sign off on a time card, it can save you a lot of heartache. So having your employees review and approve the time cards is critical. That's especially important where you've got employees that sometimes mess up on their time cards. They forget to clock in or they forget to clock out, and there's manual overrides that are done by supervisors. That's exactly why an employee should review and approve the time card. Also, with the electronic systems that we use, even if the employee is clocking in and clocking out, if there is an issue with the clock in, clock out, and they and they try to claim that as an issue later, if you have them sign and review and approve it, it's going to limit your liability there because the question is going to be like, why did the employee sign it? So that is something that is important, that any disputes that the employee has should be raised before payment is issued. And of course, that's exactly why we have a little bit of a time period between the time card being inputted and often employees being paid out. It's allowed that little grace period to deal with those issues along with actually properly process payroll and get proper deductions and as needed. So the certification should say that all hours are recorded and meal and rest breaks were provided and taken or waived with a space for exceptions where the employee can raise any concerns they have. Time adjustments. So I kind of mentioned this, but there should be a process for obtaining employee approval prior to making time adjustments. So if a supervisor has to adjust an employee's time for whatever reason, there has to be a process for that, There should be a policy for that and all supervisors should be trained on that policy to make sure that they're doing it in a compliant manner. Now, under federal law, work time may be so de minimis as to not be recordable or compensable if it's depending on its duration, repetition and the administrative difficulty of recording that time. So that's really where we're talking about donning and doffing. A good example would be during COVID, where their temperature checks under federal law, the concept of temperature checks, so long as you weren't in a facility that had to stand in line for 30 minutes. If it was a matter of a couple of minutes, it was de minimis. So it did not need to be compensable. Under California, they've done away with that de minimis standard. So the California Supreme Court concluded that California statutes and wage orders have not adopted the federal de minimis doctrine. California's directive is to compensate employees for all time worked. So any time something is considered, time worked, it needs to be paid. It's a practical administrative difficulty, even if it's not practical. And with these, let's say, temperature checks, you know, you didn't want people to clock in until they actually got their temperature check to actually make sure that they can work. That wasn't a valid excuse. So far under California law, most of the cases that we're looking at that's coming out specifically with COVID because of all these new processes that were adopted very quickly, it came out to be a problem. So keep in mind, depending on what jurisdiction you're in, that there may be some deviations from federal law California, Oregon, Washington, New York. A lot of them have these variables and they can become quite complicated and difficult. I highly recommend all employers to get their policies reviewed by an attorney before implementation to avoid these type of practices, to make sure that we are actually evaluating any time that may be considered de minimis to compensate, we're needed. So what do you really have to look out for? What does it mean? Well, during your new hire orientation or policy review, sometimes people don't have people clock in until they actually sign the documents. Have them clock in. Good idea. Pick up turning in time sheets. Hey, I forgot to drop off my time sheet. I'm just stopping by to drop it off. Guess what could be compensable? Times obtaining signatures on time sheets. Well, I'm going to sign the certification after I've already signed out. Signing the certification. Got to be on the clock responding to text message or emails outside of shift times. Don't tell people that are non-exempt, don't respond to text messages. Better yet, tell people outside of shift times, don't send those text messages. Right. You're just going to create some de minimus time issues where employees may jump back on and respond. Keep in mind, de minimis time also works for meal breaks, right? So you got an employee who's like sitting at their desk and a chat pops up on teams chat, let's say. And it says something along the lines of has this guy dropped off something? And the person just needs to write the answer no. That is still de minimus time. You may need to compensate them and you may also have a meal, restaurant meal, break violation or rest break violation. Right. So that's a problem. Calling employees to inform them of location to report for work. Yeah, that's compensable. So you're on a construction site, you're calling employees. Hey, you need to report to X this morning. That's compensable. That employee is receiving information for work. It's time worked. It is de minimus work time. So what's best practice on construction sites? When you want your employees to go to a different location, tell them the night before or pay them for that morning call. There is this thing that's the portal to Portal Act that may also go to an effect or something like that. So let's say you're calling an employee or you're asking an employee to check their temperature before they take off from work. Some jurisdictions have this thing called Reported Portal Act where their time starts there. That's when they're clocking in. So then all of a sudden, any of the time that they spend going to work is also covered work time. So be really careful about what is your practice in your jurisdiction. If the portal, the Portal Act does go into effect in your jurisdiction, you really do not want to be calling that employee in the morning. Even if you're in a jurisdiction that does allow for some de minimus work time. Time spent going through COVID or Social Security screenings. I've talked a lot about that and rounding policies. Sometimes those five minute rounding policies while in California, those rounding policies out the door now. Right. So if you have been rounding your employees time, so if they report into work at 1055 and you round some people at 1055 down to 11, and if they report to work at ten and you round them up to 945, you were in violation of rounding policies. That can create a huge amount of litigation for you. Um, as I kind of mentioned, rounding work time, rounding policies must be neutral over time. So it's got to be a neutral policy. So you've got to watch out for policies that may skew against an employee. So you've got strict attendance policies, for instance, that the employee has to be there by 11. If they're there after 11, their time gets docked. 1115. That's a problem. You have to be very careful about how these policies really target employee time. Is it somehow discriminating against the time that the employee was at the workplace and able and willing to work? If so, your policy is not going to be neutral. Best practice of using a time clock is to pay by the minute. There are challenges to rounding common and hard. They're very hard to defend. Do not round those meal period punches. That's a big issue. So employer control time that is subject to employer control may also be work time. So when you expect an employee to remain in a particular location, for instance, you're at a construction site, an employee is waiting for another group of employees to come pick them up. And, you know, he's still waiting on the site. Well, you kind of has to wait at that site until the other employees come with the company vehicle. Got to be kind of careful about that. That's still going to be work time policies that require employees to report before a shift to a particular location. So, for instance, you want employees to pick up their vehicle at the district office, but your policy basically says that their time starts when they they get to the site. Well, that time that they spend from picking up the vehicle to getting the site going to be work time policies that require employees to take employer transportation, work time. So you've got your nonexempt employees taking the bus that they need to from the main gate, from the parking lot to the terminal that is going to be compensable. Time on call policies with restrictions on employee conduct or short response times. You know, it's interesting, as an attorney, you're going to look at these things and be like, thank God we're nonexempt. We were I don't think the law firm life would survive. Right? Because I don't know about you, but there have been many times that I roll over at 4 a.m. in the morning because I'm getting pinged for something or the other. That's an urgent issue. Yeah, can't do that when your nonexempt employees. Right. They can't be on clock on on call, even if it's de minimis time in some cases. It's important to realize, especially with short response times, that they have to sit there and immediately respond. Reporting time pay. So when does an employee need to report for work? Well, when employees are required to report for work and does and does report needs to be recorded. If the person is not put to work or is furnished less than half of their usual day schedule, the employee shall be paid for half the usual or schedules day work, but in no event, for less than 2 hours, no more than 4 hours at the employee's regular rate of pay. A lot of the time, employers will just pay them for hours straight time. Can't do that. It's got to be the regular rate of pay. And that's where a lot of violations come with reporting time pay. One employee is required to report to work a second time in a day and is again provided fewer than 2 hours work. The employee shall be paid for 2 hours work and again, the employee's regular rate of pay. So even if someone stops by. Twice for 15 minutes each. First time they get paid 2 hours. Second time they get paid 2 hours. If the person comes by for 2 hours, they may get paid for more than that. They come back for 4 hours and they get paid more than that. So there are limited exceptions from reporting pay where the circumstance truly beyond the employer's control, such as failure of utilities or civil disturbance. So you've got someone who comes over because there's a fire or there there's another issue like the fire alarms going off. You don't necessarily have to pay them 2 hours to go check on that. Employees on standby pay. You don't need to pay them the additional 2 hours and employees with very short regular schedules. If they're normally a two hour or three hour employee, there's no mandate for them to be paid more than that. One day's rest in seven. So the good thing is we all deserve a day of rest, I guess. It's guaranteed for each workweek, periods of more than six consecutive days that stretch cost more than one workweek are not prohibited. It doesn't apply when the total hours do not exceed 30 hours in a week or 6 hours on any day of the week. So an employee may choose not to take a day of rest, but the employer cannot conceal or encourage employees to forgo a day of rest if they are not working 30 hours or they have less than 6 hours on any day of the workweek. Okay, let's talk about overtime. So over time, must be paid at 1.5 regular rate. Here's kind of the rules in California. Federal is a little different. In California, it's any time the employee works more than 8 hours in one workday or they work in excess of 40 hours in one week. And the first 8 hours worked on this. And whenever the employee has to work, the first 8 hours worked on the seventh day of work and any one workweek. So California's a little complicated. Generally, federal really complies with any work in excess of 40 hours in one workweek. Once you kind of get there, that's when the federal overtime act goes into effect. Overtime must be paid two times regular rate for any work in excess of 12 hours and one workday, any work in excess of 8 hours on any seventh day of work in any one workweek. That's California's rule again. So keep in mind that California has very difficult state overtime rules. Look into what state you're looking into. Don't just follow the federal rule. There's going to be nuances. And even though federal does go work in excess of 40 hours in one workweek, that allows for alternative workweek schedules in California, but you won't have to get that paperwork done properly in California to comply for it. So keep that in mind that there are other options and difficult states. If you want to have those type of options, you just have to go through the right measures to get there. No permitting of overtime required. California law does not require pyramiding of overtime. If hours are already counted as daily overtime hours, they do not count towards weekly overtime. So if you have someone and this is the perfect example with Bob. Bob works over 12 hour shifts on Monday, Wednesday and Friday, then eight hour shift on Saturday. How many California overtime hours has he worked? Well, on Monday, he works 8 hours plus 4 hours overtime. Wednesday he works eight regular hours and 4 hours of overtime. Friday he works eight regular hours and 4 hours of overtime. Saturday he works eight regular hours. And in total, he's worth 30 hours of regular pay and 12 hours of overtime. The 8 hours on Saturday constitute regular hours because there are only 24 regular hours towards 40 hours. So it's not that they're going to get double overtime whenever they surpass 40 hours total. It's tricky. Have to be pretty good at math to be able to do this. So what is a regular rate of pay? I briefly mentioned this Regular rate is a rate that incorporates compensation paid to the employee beyond their base hourly rate of pay. So if an employee only ever receives one hour a wage, the regular rate would be equal to the hourly wage. But if they pay additional amounts, shift differentials, safety bonuses, other types of bonuses, the regular rate will be higher than the hourly rate of pay. What must be included in the regular rate of pay. Hourly wages and salaries. Commission non discretionary bonuses, prizes and awards related to work shifts or job differentials and on call pay excluded from the regular rate employee benefits payments for time not worked. Business expense. Certain premium pay. So, for instance, your regular rate of pay may not necessarily include your premium pay for wage an hour, although that is somewhat in dispute in California, but in other states. Gifts for Christmas or special occasions, discretionary bonuses and meal and rest periods as stated here. So keep in mind that there if it's a wage, if it's overtime, if it's commission, if it's non discretionary, bonus safety bonuses, prizes, shift differentials, all of that would be included in the regular rate of pay. All right. Production bonuses. Here are some ideas of how to calculate the regular rate of pay. The production bonus, FLSA method, the flat sum bonus, the Alvarado method. So divide the bonus by total hours work during the period over which bonus was earned. Multiply the result by 0.5 and by number of overtime hours worked in the wall period. The flat sum bonuses Alvarado method is flat. Some bonus does not increase in relatively direct proportion to hours worked. Flat. Some bonus must be divided by straight time. Hours worked during the period over which the bonus was earned. Multiply it by 1.5 and by number of overtime hours worked in a relevant period. Okay. Timing and method of payment. So there's many different types of methods of payment. Imply must have the option to receive a lecture. Direct deposit is permitted, but it has to be optional and pay cards may be provided as an option, but an employee must be able to make at least one free withdrawal of the entire paycheck each pay period. You must give out pay stubs no matter what. You can give an option of receiving electronic pay stubs, but they have to be easily accessible and be able to be converted to hard copy at no expense. The employer must retain the pay records for at least three years. In some jurisdictions, that may vary. So in California, pay stub requirements and employers get hit on this all the time in California. And, you know, we pay some violations. It's important to know that employers can still be hit with things like paga claims and other type of violations, because once you have something out of compliance, you can get hit with several different penalties. So pay stub requirements, gross wages earned, total hours worked, and total hours worked is not required for white collar employees because there are not going to be actually tracking their time. The number of piece rate units earned and any applicable piece rate if the employee is paid on a piece rate basis. So those with agricultural employees, for instance, that may be paid on piece rate, although in California or other jurisdictions it may not be very highly regarded to do it, you have to make it very clear what that piece rate unit is to really show that you're meeting the minimum wage requirements and other wage requirements is needed. All deductions that are taken out, all deductions made on written orders of the employee may be aggregated and shown one item, but all deductions have to be allocated somewhere on that pay stub. Net wages earned the starting and ending dates of the pay period. The name of the employer in the last four digits of his or her social number or an employee identification number. Other than the Social Security number very important. The name and address of the legal entity that is the employer. Keep in mind you want to have the right legal entity on there, because otherwise you may get a lawsuit for the wrong entity, the applicable hourly rates and effect during the pay period and the corresponding number of hours worked at each hourly rate for each temporary services assignment. So a lot of stuff that can be they're paid sick leave balance. Also, if the person has vacation time should be on their vacation time used should be on their vacation time is regarded as wages earned. All of this stuff needs to be included on your pay stubs. Honestly, there is a good 15 to 17 items that employers employment counsel looks at and when they're doing pay stub audits. If you haven't had a pay stub audit in a very long time. I highly recommend sending your pay stubs to at least get them reviewed to see if there's any deficiencies or discrepancies with them. Pay frequency. Employees of temporary services. Employees must be paid weekly in California. Kind of a weird nuance. Wages are payable not later than the regular pay day of the following calendar week. No exception for overtime. You have to be on the lookout for mismatch of client billing cycles, employee workweeks. Consistency is key to avoid those violations. Now, final play is a big deal in California because there's this thing called waiting time penalties that if an employee does not receive their full pay at the end of their while they're employed, they could be entitled to waiting time penalties if temporary employees played weekly and worked until the end of an assignment, they may be paid final wages on the next regular payday. That's kind of the nuance because of course with temporary employees they may be gone and consistency is key with them. If you've got a permanent employee, it's on the date of termination. Unless the individual resigns without notice in which you have 72 hours, then final checks can only be made if it's requested by the employee. Pay card should only be used if the employer consents and an employer cannot make deductions from final pay. If the employee owes you money for whatever reason, don't just take it out of their final paycheck. Very common mistake. You have to pay that final paycheck and then you have to send a letter to the employee to reimburse you. Often they don't reimburse you, which means you're just taking a cut. Okay, I'm going to kind of shoot through these next ones a little bit fast. Expense reimbursement and per diems. Employees must be indemnified or reimburse for all necessary expenditures. Many of you guys may have dealt with this during COVID cell phones, Uber rental mileage, scrubs. If you're on the health care industry or your veterinary industry or the dental industry, anything that they are really using, they must be reimbursed for. If you've got employees that are working at home and you've got a policy that they could buy whatever they want, they can expense whatever they want. So you want to make sure that when you have those policies, when they're working from home and they need something, that they get prior approval and that be part of the requirement to actually get approved expenditures. Anything above $15 must get prior approval or something along those lines to really kind of protect yourself. Honestly, most employers try to do anything that they want. They get prior approval because even if they need paper or something like that, if they could send it from the company itself, it may be cheaper than the employee going out and getting it on their own. What about per diem? Per diem is translated to per day. It's an allowance paid to employees for lodging, meals and incidental expenses during business travel. It's meant to really cover meals and incidental expenses and lodging. Right. So the GSA, the General Services Administration, establishes per diem rates. Per diem payments are different than nurses who work per diem shifts. So keep that in mind. Per diem can be paid to an employee for up to one year at a single location without the employee having to pay income taxes. Here's some more information on this slide. Assignments at one location should generally be limited to under a year to be considered temporary or qualified per diem expenses. Receipts are not required. Do you have more questions about per diem? Please feel free to contact me at any point. I'm not going to read through this slide with you, but for DMS can be kind of complicated. I highly recommend you understand exactly the circumstances and understand your policies and how they directly are going to affect how payments should be made under per diem. Let's briefly talk about the Pay Transparency Act. So we have some states now with. Wage transparency laws. There are some states with city laws like New York City, Ohio. There are some states that are considering wage transparency laws. And why is this? Why is it so important? Well, it's important because they are trying to see why our workforces are different. California just adopted theirs this year. California employers now have to pay have new pay disclosure requirements to contend with. The pay transparency laws have gathered stream everywhere across the country. And Colorado is really following Colorado, Connecticut, Maryland, Nevada, Rhode Island, Washington, New York City, Cincinnati, and Toledo, amongst other jurisdictions. And enacting this new legislation to really require employees to disclose wage information to job applicants and in some instances, to current employees. So advocates of the new law asserted that it will help drive pay equity across genders and nationalities, which we have seen difficulties with over the years. After a lot of hearings in California and the State Assembly and Senate and five major amendments, Governor Newsom signed this Senate bill 1162 into effect, which began January 1st of this year. So it's really brand new in California, has been around in other states for some time, But we're going to see it in more states as time goes. So what is this new California transparency requirement require? There's a national trend for greater power of transparency to really help drive pay equity across genders and nationalities. It imposes two significant requirements in California job posting requirements and pay data disclosures. So the job posting requirements, employers with 15 or more employees must include pay data in the job posting. Employers with 100 or more employees must include pay data disclosures to employees. They must report the pay data if you have over 100 employees. And and their contractors by race, ethnicity and gender. And all of this needs to be reported to California State. So it's a big trend right now. So under the job posting requirement, what do you need? You must be disclosed. The information must be disclosed in the job posting. It must be disclosed to all applicants, not those just offered a job. So it should be in the job posting itself. It must provide current employees pay scale for the position upon request. It must record retention requirements. So job titles and wage rate history durations start of employment in three years after employment ends. The Labour commissioner may inspect and investigate and any failure to keep the records. There's a rebuttable presumption in favor of the employees claim. So it's really important to realize that this is something that can be very significant for employees. Now, both private and public employers must follow the new wage disclosure requirements for job postings. Its newly revised Labor Code Section four 32.3. Great read for all of those that it may affect. You know, these records have to be made available to the Labor commissioner for inspection whenever it's being requested. It's really a burdensome recordkeeping requirement, imposes an obligation for employers to save all the records well beyond the current record retention schedule because we have longer statutory periods. As a result, employers should really plan how you plan on saving these records before they're purchased, specifically with job postings. So now let's talk a little bit about pay scales. What's the pay scale? It's really broad and kind of left up to interpretation. It's defined as salary or hourly wage range that employer reasonably expects to pay for the position. So we don't really know if it includes these other things bonuses, commissions, incentive pay, PTO parking space expense reimbursements. Is it the regular rate or I mean, it says salary or hourly wage range, but what is it really very hard to discern? Pay data disclosures. So this is really what is going to affect your lives. Employers over with over 100 employees must disclose race, ethnicity and gender to this date within each of the following ten job categories listed on the right hand side. Employers with multiple establishments must submit a report covering each establishment so they even do it by establishment. Staffing companies are included and private employers with 100 or more employees hired through labor contractors in the prior calendar year must submit a separate pay data report covering labor contractors. The legislature specifically included staffing companies and labor contractors in this bill, under the assumption that the use of contract labor is on the rise and that contract workers provide the same services as direct hires, but that they are paid less. So this is really a targeted effect. The first filing deadline for the report is May ten, 2023, in California, and that is due the second Wednesday in May. Employers must upload their data files using the California Pay Data Reporting portal. There's probably going to be more delays in how the portal works, but it's coming for those people in California. This significantly amends the annual pay data reporting requirements. You know, with these type of extra categories, executive senior level officials first or middle level officials, they're really trying to see what gender, what nationality of employees are working in these areas. So it is a very targeted effect based on the categories that they've identified. Enforcement and penalties. So the job posting requirements, statue limitations one year after discovery of the violation. So if someone doesn't discover it right away. That's going to give them time to be able to raise the violation. It allows for a private right of action, which means paga claims can be brought on this. The Labor commissioner investigates and assesses penalties. Penalties are no less than 100, but no more than 10,000. And there is a rebuttable presumption for failing to keep records. Now the annual report follows a similar recipe. Reports are due before the second Wednesday of May, starting May 2023, submitting through the online portal. It's going to be investigated and enforced by a C or D. Crd can seek an order requesting the employer to comply. If they don't have it, the ED will provide names of of the employer, Percy or D's request. So if you're paying withholdings on more than 100 employees, you should submit your your report because they're going to get a report of who is included upon Cdw's request. Court may impose a civil penalty not to exceed 100 per employee for failing to file the required report and not to exceed 200 for subsequent failure. Crd can also recover costs associated with compelling compliance. Private information is supposed to remain confidential in this situation. The law also authorizes the Civil Rights Department. That's the CRD to request the employment to provide the names of those businesses. As I mentioned, the list, while it's probably meant for auditing purposes, is going to be a public record. So the Civil Rights Department, the CRD will enact regulations in the next year or so regarding further details of disclosure and compliance obligations, because chances are, if that's used as a as a record, it's an open forum for plaintiff attorneys to go in and check and see if employers have job posting requirements and things of that sort and annual reports. It's an easy target, especially where there is a private right of action for applicants. With all that being said, that's all we have for today. If you have any questions and I noticed that my contact information is on this, but you can email me at a range at littler dot com that's a r a J at littler dot com or you can call me at 9259274525. That's 9259274525. Thank you again for joining me Uncle Ramsey and Danny Raj on this lovely journey through wage and hour.

Presenter(s)

AR
Alka Ramchandani-Raj
Shareholder and Co-Chair, Workplace Safety & Health (OSHA/MSHA) Practice Group
Littler Mendelson P.C.

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