03.09.21

New CDC Guidance for Fully Vaccinated People

COVID-19

On March 8, 2021, the CDC has released new health recommendations for people who have been fully vaccinated against COVID-19. “Fully vaccinated” is defined as having received both doses of a two-dose series of a COVID-19 vaccine, or having received a single-dose vaccine, two or more weeks ago.

According to the CDC, fully vaccinated people can:

– Visit with other fully vaccinated people indoors without wearing masks or physical distancing.

– Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing.

– Refrain from quarantine and testing following a known exposure if asymptomatic.

People who are fully vaccinated are encouraged to continue practicing social distancing and masking when in public and when visiting with people at higher risk for severe COVID-19 symptoms, such as the elderly.

This is very encouraging news, and it may be tempting to relax workplace requirements for masking and social distancing, but remember that our state and county regulations have not yet changed. The CDC provides recommendations to individuals, not to employers who must maintain compliance with a wide variety of state and local mandates. Sierra HR Partners recommends staying consistent with your COVID-19 health precautions until the Departments of Public Health provide updated guidance. Please contact us if you would like to discuss specific workplace situations.

__________

Have questions?

Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:

Dan Larsen – larsen@sierrahr.com

Janet Keene – keene@sierrahr.com


03.05.21

Taking Employees’ Temperature Could be Compensable Time 

HR NEWS

Taking Employees’ Temperature Could be Compensable Time 

Written by Doug Larsen of Fishman, Larsen, & Callister. 

We have previously notified clients that time spent on the employer’s premises waiting for, and undergoing, required exit inspections or searches of packages, bags or personal technology devices is compensable as hours worked.  (Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038.)  Several clients are now asking whether time spent by employees submitting to temperature scans is also compensable time.

California’s definition of “hours worked” is broader than the federal definition of the term.  Under federal law, “hours worked” includes the time an employee is suffered or permitted to work.  California’s definition of “hours worked” is whenever the employee is “subject to the control of the employer,” including when the employee is suffered or permitted to work.  It is this broad definition – subject to the control of the employer – that creates potential liability for an employer who requires an employee to submit to an inspection of bags as in the Frlekin case, sit on a bus traveling to the worksite, as in Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, or waiting for, and submitting to, a temperature scan.

In Frlekin, the Supreme Court has noted several elements of control:  (1) Employees must wait for, and submit to a search; (2) the employer confines the employee to the premises as they wait; (3) the employee must wait for a security guard, open bags and provide a personal technology card; and (4) the activity primarily benefits the employer as opposed to the employee.

These are the same considerations an employer should consider as it compels an employee to submit to a temperature scan.  I would also add another factor – the time involved.

For many employers, the temperature scan is no more than a 3-5 second act.  That is the typical time an employee in my office spends while a temporal thermometer scans an employee’s forehead.  The employee hardly breaks stride to have the scan performed.  Assuming an employee immediately logs in after the scan, the 3-5 second delay probably does not affect the time worked.

In my case, the employee manually notes time arrived on a time card.  Employees who manually record their time can record the minute they walked in and became subject to the scan.

A temperature scan may or may not affect the arrival time in those workplaces where timekeeping is computerized or electronic.  If the scan takes 3-5 seconds, the computerized or electronic system is likely to record the time of arrival accurately, since the system records time by the minute, not the second.  In fact, this might be a proper application of the de minimis rule which has very limited application under California law.  This rule allows an employer to ignore trivialities when calculating hours worked.  However, many employers have tried to use this rule to justify longer periods of time that could be recorded on a time card.

If an employee must wait in line and the process takes longer than a few seconds, it is possible that the arrival time recorded is affected by the longer scanning process.  In this situation, it is likely that the time spent waiting and participating in the scanning process constitutes “hours worked.”

Wage and hour litigation is a burgeoning business in California.  Lawyers are filing lawsuits based on inadvertent and seemingly inconsequential underpayments of wages.  These allegedly small errors, when grouped as a class or into a PAGA lawsuit, can result in a substantial settlement or judgment.  Of course, attorneys’ fees are often a significant portion of the settlement or judgment.

I often advise employers to “avoid the claim.”  The claim itself has an economic value consisting of the time, effort and expense of responding to a claim, and paying any settlement.  Frequently, an employer is best served by avoiding the claim, although it may cost more to operate the business.

I also recommend that employers undergo wage and hour audits of their workplace practices by a lawyer.  While an audit cannot guarantee a claim won’t be filed, it can reduce the risk of the lawsuit, and the chances that a plaintiff prevails.  We have performed many of these audits.  Our clients have identified company practices that could result in potential claims, and have modified those practices to avoid those claims.  The fact that a lawyer performs the audit shields the work from discovery and allows the employer to communicate freely and candidly understanding the attorney-client privilege protects those communications.

___________

Have questions?

Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:

Dan Larsen – larsen@sierrahr.com

Janet Keene – keene@sierrahr.com


03.03.21

Meal Period Rounding Rejected by the California Supreme Court

HR NEWS

Written by Doug Larsen of Fishman, Larsen, & Callister. 

Pursuant to California’s wage orders, an employer must provide employees with a 30-minute meal period before the end of the 5th hour of work.  A second meal period must be provided before the end of the 10th hour of work.  An employer satisfies this obligation when it relieves employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take a 30-minute meal period, and does not impede them from doing so.  A violation results in the imposition of a penalty, referred to as a “meal period premium” unless the employee voluntarily chose to work during a meal period after the employee was relieved of all duty.

What happens if an employer uses a rounding practice to record an employee’s meal period?  According to Donohue v. AMN Services, LLC, 2021 Cal. LEXIS 1294, issued by the California Supreme Court on February 25, 2021, the employer will likely be in violation of the meal period law.  The problem that arises is that the law is very precise.  It requires a meal period of no less than 30 minutes which must occur within the first five or 10 hours of work.  Rounding does not provide a precise measurement for determining the time when the employee started the meal period, or the exact length of that meal period.  Moreover, it does not compensate the employee for time worked during the meal period that the employer knew the employee was working.

Using the example from the Court, if an employee clocked out for lunch at 11:02 am and clocked in at 11:25, and if the company rounded to the nearest 10-minute increment, the time recorded for lunch would have been 11:00 am to 11:30 am.  In actuality, the meal period was 23 minutes.  This rounding practice not only masks the length of the meal period, it does not disclose the reason the meal period was not taken nor compensate the employee for time worked during the meal period.
Quoting a case involving BBSI which resulted in significant employer liability, the Court wrote, “when time is scarce, minutes count.”  The practice of rounding is not as precise as the meal period obligations.  A few minutes lost one day cannot be offset by a longer meal period on another day.

As a result, the Court held that employers cannot engage in the practice of rounding time punches with respect to meal periods.  Employees are entitled to timely meal periods lasting at least 30 minutes.

Furthermore, time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations.  In other words, the burden is on the employer to show that an untimely or a short meal period was the result of an employee’s voluntary decision and not due to the demands of the job.

This decision should cause every California employer to consider its wage and hour practices, particularly timekeeping practices with respect to meal and rest periods.

How do you keep track of the exact time an employee leaves for a meal period, how long the meal period lasts, and documentation regarding the employee’s reason for a late or short meal period?

Have questions?

Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:

Dan Larsen – larsen@sierrahr.com

Janet Keene – keene@sierrahr.com


02.11.21

February 2021 COVID-19: Action Steps for Moving Forward

HR Headliner

The past year has felt a lot like trying to juggle on a unicycle – addressing multiple urgent situations at the same time, while trying to keep our balance in the face of changing regulations, safety protocols, and shut-down orders. But now, with case rates slowing and vaccines gaining momentum, we may be ready to take a deep breath and focus on longer-term policies and procedures.

_____________________

Sierra HR Partners is standing by to prepare your COVID-19 Prevention Plan and
assist you with necessary steps in response to ongoing COVID-19 concerns. Our hope is that COVID-19 and other infectious illnesses will become less of a circus act, and more like the confidence and calm of an Olympic gymnast! (We can dream, right?)

_____________________

Did You Know?

The Cal Savers state retirement savings program was created by SB 1234 in 2016, and provides automatic enrollment for workers whose employers do not sponsor a 401(k) or other retirement plan. Employers who do not offer their own retirement plans are required to register with the state according to the timeline below, report new hires, and facilitate employees’ plan contributions through payroll deductions. Employees will receive information from Cal Savers about their enrollment, with instructions for how to participate or opt out. On the Resources tab of their web site, Cal Savers provides a communication tool you may use to help employees understand the new options.

Employer Size Registration Deadline

More than 100 –  September 30, 2020

More than 50 – June 30, 2021

5 or more  –  June 30, 2022

_____________________

The Department of Fair Employment and Housing has published updated versions of several required new hire notices. We recommend printing the documents below for your onboarding packets, or saving the links for use as needed. Spanish and other language versions are also available on the DFEH web site.

_____________________

President Joe Biden has made no secret of his desire to raise the federal minimum wage to $15 per hour. In one of his Executive Orders, he asks the Office of Personnel Management to make “recommendations to promote a $15 minimum wage for Federal employees.” The latest proposed COVID-19 stimulus package includes changing the federal minimum wage to $15 for all employees. While it is unlikely that this element of the stimulus plan will survive, we don’t know whether the new administration will use other means to accomplish the goal. If enacted, a $15 federal minimum wage would accelerate California’s progress toward that number, which is currently set for January 1, 2022 for employers of 26 or more employees, and 2023 for smaller businesses. We encourage employers to proactively assess any changes that would be required for exempt and non-exempt pay rates so that you can respond quickly if needed.


01.27.21

California’s Stay-At-Home Order Lifted: What Does This Mean For Your Business?

COVID-19

On Monday, Governor Newsom lifted the stay-at-home order that had been in place since early December.

While this is welcome news, it does not mean that all can return to normal. Lifting the stay-at-home order means a return to the tiered Blueprint for a Safer Economy plan, and Fresno County is still in the most restrictive “purple” tier.

To leave the purple tier, counties must have fewer than 7.0 new daily cases per 100,000 people and must have a lower than 8.0% positive test rate. As of January 26, Fresno County has 58.0 new daily cases and a 15.3% positive test rate. That is very much in the purple tier.

To leave the purple tier, counties must have fewer than 7.0 new daily cases per 100,000 people and must have a lower than 8.0% positive test rate. As of January 26, Fresno County has 58.0 new daily cases and a 15.3% positive test rate. That is very much in the purple tier.

Restaurants may resume outdoor dining and other businesses, including hair and nail salons and barbers, may resume operations. Retail operations can also expand their capacity limits from 20% (under the stay-at-home order) to 25% (under the purple tier restrictions).

All employers should maintain COVID-19 safety protocols including face coverings, social distancing, sanitizing work surfaces, and daily health screenings.

We encourage you to create a COVID-19 Prevention Program (CPP) for your business, as required by Cal/OSHA. Sierra HR Partners is happy to help. If you’d like us to assist in creating a customized, comprehensive CPP, please complete the questionnaire here.