HR News

12.30.21

Employers Beware: Exempt Salary Increase as Minimum Wages Increase

FLC - Wage & Hour

Employers Beware: Exempt Salary Increase as Minimum Wages Increase

by Doug Larsen of Fishman, Larsen, & Callister

Minimum Wage Increase in 2022

On January 1, 2022, California will hit its goal of $15 per hour minimum wage for businesses with 26 or more employees. Minimum wage for smaller employers will be $14 per hour in 2022. Next year small employers will be required to pay the $15 per hour minimum wage.
What employers often forget is that when the minimum wage increases, so does the salary level for exempt employees.

Salaries for Exempt Employees Increase in 2022

Under California law, an employee may be exempt if the employee functions as a manager, administrator or professional and if the employee is paid at least two times the minimum wage in the form of a salary. This means that a large employer in California must pay its exempt employees at least $62,400 and a small employer must pay its exempt employees $58,240 to maintain the exemption.

When we speak of an “exemption” we are typically saying that the employee is exempt from overtime compensation. In California, “exemption” also means that most of the provisions of the Wage Order do not apply to the employee. Accordingly, an exempt employee – a person who passes the salary test and the duties test as a manager, administrator or professional – cannot assert many of the wage and hour claims that non-exempt employees can make. Maintaining that exemption, although it comes with a high salary, can be a powerful tool for any employer.
If you want to maintain the exemption, be sure to increase the salaries of exempt employees to meet the statutory minimum.

 

What Happens If You Fail to Pay the Minimum Salary

If you fail to pay the salary minimum, your employees who may be exempt in 2021 are not exempt in 2022. This means they are entitled to overtime compensation, among other things. However, most employers won’t be keeping the formerly exempt employee’s time (which is a time-keeping violation). This means that paycheck stubs are inaccurate, and you are subject to awards of damages and civil penalties. Meal period violations may occur, resulting in an additional hour of compensation as a “premium.” Moreover, if that premium or overtime is not paid by the time the formerly exempt worker’s employment ends, you will be liable for up to 30 days of pay in the form of waiting period penalties.

 

FLC Represents California Employers

The law firm of Fishman, Larsen & Callister represents and fights for California employers. Contact us if you are a California employer and need help navigating California’s employment laws.


12.20.21

COVID-19 Update: OSHA’s Federal Vaccine Mandate is Back In Effect

COVID-19

COVID-19 Update:
OSHA’s Federal Vaccine Mandate is Back In Effect

Early in November, OSHA issued an Emergency Temporary Standard (ETS) that mandated vaccination policies for employers of 100 or more employees. Shortly after, the Fifth Circuit Court issued a stay on that ETS. On Friday, December 17th, 2021, the Sixth Circuit Court filed an emergency motion to dissolve this stay.

OSHA’s ETS is extensive. It requires employers to verify employee vaccination status using official documentation, provide paid time off for employees to receive vaccinations and recover from side effects, provide weekly COVID-19 testing for those exempted from the vaccine mandate, and create policies and guidelines related to these safety measures.

Employers generally felt a sense of relief when the federal ETS was paused. Now, that relief is dissolving just like the Fifth Circuit Court stay. Several emergency petitions have been filed with the Supreme Court of the United States, but unless the Supreme Court issues a stay of its own, enforcement of the OSHA ETS will proceed early next year.

What should employers do now?

OSHA has written that they plan to exercise “enforcement discretion with respect to the compliance dates of the ETS.” They continue, “To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.” (emphasis added)

This means that covered employers with 100+ employees should begin to develop, implement, and enforce their mandatory vaccination policies and start tracking the vaccination status of employees by obtaining appropriate official documentation. Employers must also provide CDC information about vaccines, protection against retaliation, and the criminal penalties associated with knowingly providing false information. These actions are required by January 10. Employers should also determine the extent to which they will implement weekly COVID-19 testing. These measures are required by February 9.

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On a somewhat-related topic, we know there have been questions about the enforcement of California’s latest state-wide mask mandate for indoor spaces through January 15, 2022. Some local authorities have publicly stated they will not enforce the CDPH requirement, but Cal/OSHA is taking a strict approach. In their posted FAQs, Cal/OSHA states that its emergency temporary standard “requires that employers provide face coverings and ensure they are worn by employees when required by orders of the California Department of Public Health (CDPH). The December 13, 2021 CDPH guidance is such an order.” This means that Cal/OSHA may issue citations for companies who do not comply with the mask mandate, even if City or County officials do not.

As always, Sierra HR Partners is here to help you navigate the ever-changing landscape of COVID-19 precautions. Stay tuned for more information, and contact one of our Consultants with any questions you have.


12.14.21

COVID-19 Update: California’s New Mask Mandate For All Indoor Public Spaces

COVID-19

COVID-19 Update:

California’s New Mask Mandate For All Indoor Public Spaces

In a press conference on Tuesday, December 13, 2021, California’s Health and Human Services Secretary, Mark Ghaly, announced a statewide mask mandate between December 15, 2021 and January 15, 2022. Shortly after this announcement, the California Department of Public Health (CDPH) published further guidance.

Specific direction is limited; the guidance simply says, “Masks are required for all individuals in all indoor public settings, regardless of vaccination status from December 15, 2021 through January 15, 2022 (surgical masks or higher-level respirators are recommended).”

The CDPH maintains a page for mask-related questions and answers, but this page has not been updated since November 30, 2021.

The CDPH also reminds workplaces that they are subject to Cal/OSHA regulations, including the COVID-19 Emergency Temporary Standard (ETS) which was effective in June 2021. If you’ve been following Sierra HR Partners’ HR Headliners and other breaking news releases, and if you’ve implemented a compliant COVID-19 Prevention Program, this brief mask mandate is the only necessary change. The requirement is set to expire January 15, 2022, but may be extended.

As reported by The Hill, “It’s unclear whether the mandate will be enforced, and Ghaly said during a briefing that he expects some places to have stronger enforcement than others.” Historically, some California municipalities have refused to enforce past mandates, and we do not have indication of possible penalties for failing to implement this latest requirement. Ghaly acknowledged that people are growing weary of ever-changing rules, but emphasized the effort to minimize COVID cases as much as possible. “We know that there’s going to be people who don’t necessarily agree with this, who are tired, who aren’t going to mask. We hope that those are few and far between, that most people see the purpose of doing this over the next month as something to protect them and their communities during a very tough time.”


11.19.21

HR Headliner November 2021: How Inclusive is Your Holiday Calendar?

HR Headliner
As we know, valuing diversity can foster an inclusive and engaged workplace. But have you given any thought to the diversity of your company’s holiday calendar? For most businesses, these celebrations are focused primarily around traditional Christian holidays, however an increasing number of Americans identify as Jewish, Muslim, Buddhist, Hindu, or no religious affiliation.
Here are a few ways to recognize your workplace’s diversity this holiday season:

 

  • Be sure employees know that holiday parties are not mandatory. Whether for religious reasons or other personal circumstances, some people may prefer to opt out.
  • Consider allowing employees to work on traditional holidays and take a different day off with pay for their own religious celebrations. (Remote work from home may be a great option on these days, when possible.)
  • Allow employees to plan office parties in observance of other religious holidays, and invite staff members to learn more about each other’s cultures. (Again, attendance is always optional.)
  • Take steps to learn more about the religious holidays that may be part of your employees’ lives. It’s great to wish everyone a Merry Christmas, but consider how much your staff members would appreciate proactive recognition of their special celebrations, as well.
Finding ways to not only accommodate, but encourage employees to observe their own religious holidays could be seen as a competitive advantage in attracting and retaining great talent. In a recent study conducted by Yello recruiting software, 83% of candidates consider a diverse workplace to be influential when considering an offer of employment. A 2021 Citrix study found that 86% of employees believe a diverse workforce will become increasingly important over time.
We will be talking about best-practices for office holiday celebrations in our Leadership Academy workshop “Keeping the Jolly in the Holidays” on Wednesday, December 1st. Join us via Zoom to learn more!

11.18.21

COVID-19 Update: OSHA’s Vaccine Mandate Blocked by a U.S. Court of Appeals

COVID-19
On November 4th, we let you know that the Occupational Safety and Health Administration (OSHA) filed a proposed rule requiring employers of 100 or more to ensure that their employees were either vaccinated against COVID-19 or tested weekly for the virus.
The very next day, petitions were filed by individuals, corporations, and States requesting that the rule be struck down. On November 12, 2021, the Fifth Circuit Court of Appeals issued an order staying the implementation of OSHA’s emergency temporary standard (ETS) pending judicial review to determine if a permanent injunction is appropriate. Below is a summary of the Appeals Court’s ruling:
The written decision begins by quoting OSHA’s own statement from June 2020 that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19,” and points out that the Mandate does not attempt to explain why the federal government was previously outspoken against vaccine mandates, but now considers them to be an emergency necessity. President Biden is quoted from December 2020 as saying, “No, I don’t think vaccines should be mandatory.” The Court noted that OSHA was not created to enact “sweeping pronouncements on matters of public health” and the Mandate “likely exceeds the federal government’s authority under the Commerce Clause.”
Even if the Mandate were found to be constitutional, the Court recognized several significant flaws in OSHA’s requirements. The Court described the Mandate as a “one-size-fits-all sledgehammer that makes hardly any attempt to account for difference in workplaces and workers.” The ETS makes no distinction in the risks facing “a security guard on a lonely night shift” and a “meatpacker working shoulder to shoulder in a cramped warehouse.” Describing the requirements as both “staggeringly overbroad” and “underinclusive,” the Court points out that COVID-19 poses relatively little risk to the majority of Americans, but that under this rule, “the most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer.” “The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”  
So, what do we do now? Because the ETS cannot be enforced at this time, the December and January deadlines for employees’ COVID vaccinations are no longer in effect. (Other vaccine requirements, such as those for health care workers and federal contractors still remain in place.)
There are a variety of federal petitions on this topic still to be reviewed, and California’s own Cal/OSHA regulation is set to be published in the near future. Smart, reasonable COVID safety measures such as knowing your staff’s vaccination status, monitoring for symptoms, and maintaining good workplace cleaning and hygiene will continue to be best-practices regardless of how the government tries to work through these complex issues.
As always, we’re here to help you navigate the ever-changing landscape of COVID-19 precautions. Stay tuned for more information, and contact one of our Consultants with any questions you have.

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