- By: Ruth Evans, Owner of The Evans HR GROUP
As much as I would like to start the New Year off with a positive message….the California Legislature makes it difficult to do so since they, with the Governor’s support, have passed a host of new laws for all of us to deal with. I’ve selected a few of those new regulations to write about in this article.
Pregnancy Disability Leave
Employers with 5 or more employees are now required to maintain and pay for the health insurance, under the group health plan, of an employee on pregnancy disability leave for up to 4 months in a 12-month period. This is one month longer than is currently required by the Federal Family and Medical Leave Act for an eligible employee disabled due to pregnancy.
SB 299 requires the employer to maintain the health benefits at the same level as when the employee was working. The employee must continue to pay her portion of the premium.
Non-Exempt Employee – New Hire Notice Required
AB 469 enacts the Wage Theft Protection Act of 2011 which criminalizes willful violations for non-payment of wages after a court judgment or final administrative order, and among other things a) requires restitution to the employee in addition to a civil penalty for failure to pay minimum wages, b) requires that specified information be provided to employees at the time of hire and in wage claim proceedings and that employers update changes within specified periods, and c) allows employees to recover attorney’s fees and costs incurred to enforce a judgment for unpaid wages.
Now, when a non-exempt employee is hired by any California employer, the employee must be given a notice with specific information as follows:
- The rate of pay and whether the position is hourly, salary, piece, commission or otherwise, including any overtime rate
- Allowances, if any, claimed as part of the minimum wage, including meal and lodging allowances
- The regular pay-day designated by the employer as required under the Labor Code
- The employer name, including “doing business as” names
- The mailing address, the physical address of the employer’s main office or principal place of business if different from the mailing address
- Employer’s telephone number
- The workers’ compensation carrier’s name, address and telephone number
If the Labor Commissioner determines that other information is necessary, employers will be required to include that additional information. If the information provided in the notice changes, employers must provide the changes in writing to the employees within 7 calendar days unless those changes are included on a timely wage statement or other writing required by law.
Willful Misclassification of Independent Contractors
An area that is particularly challenging for employers is classifying employees correctly as exempt or non-exempt as well as making sure that individuals are not misclassified as independent contractors. SB 459 prohibits the willful misclassification of an individual as an independent contractor rather than as an employee. Employers who violate this law are subject to specified civil penalties between $5,000 and $25,000. These penalties can be assessed by the Labor and Workforce Development Agency or a court and enhances the penalty when the employer has engaged in a pattern or practice of willful misclassification. The Labor Commissioner is expressly authorized to enforce this law. Willful misclassification is defined as: “avoiding employee status of an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”
In addition, this law imposes joint liability on non-attorney outside consultants who knowingly advise an employer to treat an individual as an independent contractor to avoid employee status.
If you are using independent contractors, now is the time to make sure they are correctly classified.
Written Commission Agreement
AB 1396 requires that, by January 1, 2013, employers provide written, signed contracts when they have commission pay arrangements. The contract must specify the method by which commissions are to be calculated and paid. If the contract expires and the parties keep working under the expired contract, the contract terms are presumed to remain in effect until a new contract is signed or the employment relationship is terminated.
On another note:
The IRS Mileage Rate for 2012 is 55.5 cents per mile when an employee uses a personal vehicle for Company business.