HR News

Mid-Year Employment Update

The following is a brief summary of a few significant developments. Sierra HR Partners is available to explain these employment updates in further detail and assist in implementing any needed changes.

Updated CFRA Regulations

Significant changes recently took place to the California Family Rights Act (CFRA), for employers with 50 or more employees, which may impact your policies and practices, including but not limited to:

• Updated guidelines on what can be included on a medical certification form. For leaves running concurrently with FMLA, be sure to use a medical certification form that is compliant with California’s FEHA guidelines, which prohibits asking for a medical diagnosis.
• In-patient care is defined as having been admitted with the ‘expectation of remaining overnight’ versus FMLA language that more clearly requires an actual overnight stay.
• Spouse definition now includes married same-sex partners and registered domestic partners.
• Employers cannot require the use of paid time-off if an employee is receiving disability or paid family leave benefits during CFRA leave.
• Requiring a second opinion is only permitted for an employee’s own serious health condition and only if you have a “good faith, objective reason to doubt” the validity of a medical certification.
• Unlike FMLA, under CFRA you may only require recertification after the initial certification has expired.
• Calculating leave entitlement for an employee with an irregular work schedule requires a 12-month look-back to determine average weekly hours worked.
• Interference with CFRA leave rights includes refusing to authorize and/or discouraging an employee from using such leave.
• Expanded definition of employee worksite, including those that work remotely.

Sierra HR Partners is available to help determine if you are a CFRA covered employer and to ensure your policies, practices, notices and forms are compliant and adhere to best practices.

Form I-9 Compliance and Best Practices

All employers are responsible for completing an I-9 form for new and rehired employees hired after November 6, 1986. This form, required by the Department of Homeland Security’s U.S. Citizenship and Immigration Services division, verifies individual identity and employment authorization.

The following are the most common issues we see when auditing these forms:

• An old I-9 form being used. This form was last updated on 3/08/2013 (valid through 3/31/16). Be sure to use the most current version.
• Employee Section 1 not completed correctly. Note that employers cannot fill in the employee section. If you need to make changes; ask the employee to correct, initial and date.
• Identity and employment authorization documents listed in the wrong columns in Employer Section 2.
• Keeping copies of acceptable documents for some, but not all employees. Although not a requirement to keep copies of documents, there are benefits to both practices and you need to be consistent.
• Missing information in Employer Section 2 and certification statement such as employee’s name from Section 1, employee’s first date of employment and employer address.
• Accepting social security cards that have not been signed.
• Employee completing Section 1 or providing acceptable documents 
later than first day of work.
• Employer completing Section 2 and Certification statement later than three business days from employee’s first day of work. Best practice is to complete all information on day one.
• Allowing untrained staff to complete and maintain form I-9s.
• Missing form I-9s for some employees, often those hired a long time ago or senior-level managers. Note I-9 form is required for all employees hired after 11/06/1986.
• Filing form I-9 with other personnel documents. Keep in mind that if subject to an audit, you will need to quickly turn over all form I-9s and you probably don’t want to hand over all personnel files, which could trigger other issues.

Sierra HR Partners is available to audit your form I-9 documents and practices, and to train your staff responsible for completing I-9s, which can reduce or limit your exposure to significant penalties. Additional employer resources may be found by visiting “I-9 Central” on the Department of Homeland Security’s website.

California’s Fair Pay Act

Last month, Governor Brown signed into law SB 358, the California Fair Pay Act, aimed at eliminating gender-based wage discrimination. Previously, establishing a claim of “equal pay for equal work” was difficult because the term “equal” could be interpreted to allow minor differences in job duties to justify gender-based pay differentials. The new Act establishes a standard of “substantially similar work,” defined as a combination of skill, effort, responsibility and working conditions. So, two employees with different job titles and daily tasks could be seen as performing substantially similar work requiring equal pay.

The Act provides exceptions for equal pay including: 1) a seniority system, 2) a merit system, 3) a system that measures earnings by quantity or quality of production, and 4) a bona fide factor other than sex such as education, training, or experience. While the first three exceptions can be defined and measured by an employer’s policies, the fourth leaves room for subjectivity that may create risk. SB 358 goes further by requiring that the reason for the differential must be job-related and consistent with business necessity. This means an employer cannot base a pay gap on factors that are not directly connected to success on the job.

Employees are also protected against discipline or retaliation for discussing their own wages or inquiring about the wages of others.

Employers can take a number of steps to ensure pay equity among employees and demonstrate compliance with the new law:

• Review all job descriptions to ensure the job duties, working conditions, and qualifications are accurate and up-to-date.
• Audit employees’ pay rates to identify potential differences between employees who perform “substantially similar work.” (Legal counsel may be necessary for some analyses.)
• Create a salary structure that defines pay ranges for specific positions or employee classifications using education, experience, skill level and other job-related factors to justify pay levels.
• Remove any company policies that prohibit employees from discussing or disclosing their wages.