02.21.23
Are You Paying Rest and Meal Period Premiums Correctly?
HR Headliner
The phrase “Time is Money” is perhaps never more true than when we’re navigating California wage and hour law. A 2021 court ruling regarding the calculation of rest and meal period premiums may have created an important and challenging new step in your payroll process.
As you know, California Labor Code section 510 and IWC Wage Orders require that employees receive overtime compensation at 1.5 times their regular rate of pay for work hours over 8 in a workday or over 40 in a workweek. If an employee receives multiple pay rates in a workweek (for example, a shift differential for certain shifts), or earns commissions or non-discretionary bonuses, the regular rate of pay must be calculated using these amounts.
California Labor Code section 226.7 states that if an employee is not provided with a rest or meal period in accordance with the law, “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation.” Unlike regular rate of pay, the Labor Code and Wage Orders do not define this term, and employers have historically interpreted the requirement as one additional hour at an employee’s straight-time hourly rate.
A 2015 class action lawsuit, Ferra v. Loews Hollywood Hotel, LLC, challenged this practice. The complainant argued that non-discretionary incentive payments should be included in the regular rate of compensation when calculating rest and meal period premiums. The trial court found in favor of the defendant, saying that the terminology used in the two Labor Code sections were not interchangeable, and the calculations involved in regular rate of pay were not applicable to rest and meal period premiums. In 2019, a Court of Appeals affirmed the trial court’s decision and employers breathed a huge sigh of relief….
….Until July 2021, when the California Supreme Court reversed both the trial court’s and the Court of Appeals’ findings. In its decision, the Supreme Court acknowledged that we are not given a clear definition of the term regular rate of compensation, but held that this does not mean the drafters of the law intended for there to be a different approach. In fact, the Court determined that the terms had been used interchangeably in legislative sessions and court decisions.
Based on this ruling, rest and meal period premiums must be calculated using either a weighted average of the employee’s pay rates and earnings in a workweek, or including non-discretionary incentives received during the workweek. The Court also stated that the ruling would be applied retroactively saying, “no considerations of fairness or public policy” warranted applying the policy only for future practices. (If an employee earns just one hourly rate and no commissions or bonuses, the regular rate of pay is simply the straight-time hourly rate.)
We know that calculating an employee’s regular rate of pay can be extremely confusing. Please contact one of our certified Consultants if you have questions about your current payroll procedures.
02.06.23
COVID-19 Update: Cal/OSHA’s Non-Emergency COVID Standard
COVID-19
After almost three years of being in an “emergency” state, Cal/OSHA has finally published its non-emergency COVID-19 standard.
Last month, Cal/OSHA submitted its non-emergency COVID regulation to the state for final approval. The state Office of Administrative Law (OAL) approved the regulations Friday afternoon, February 3, 2023. These non-emergency regulations will remain in effect for two years (or, in the case of recordkeeping requirements, three years).
What are the most important elements of this non-emergency standard that employers should be aware of?
What Has Not Changed
Employers must maintain a plan to address COVID-19. While you are no longer required to maintain a separate COVID-19 Prevention Program, you must still address COVID-19 hazards as part of your Injury & Illness Prevention Plan (IIPP.) This means that, as with other hazards, you will need to account for employee training and compliance and hazard assessment, correction, and prevention.
You may continue to maintain a separate program if you prefer. Whether as a separate program or part of their IIPP, employers must:
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Provide face coverings and ensure their use when required by the CDPH.
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Make COVID testing available, during paid time and at no cost, following a close contact or during an outbreak/major outbreak.
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Exclude COVID-19 cases from the workplace as directed by the CDPH.
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Address workplace ventilation as part of their COVID-19 prevention measures.
What Has Changed
Many of the burdensome requirements of the emergency standard have been eliminated from the permanent standard (whew!):
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Employers are no longer required to pay “exclusion pay” to those employees who are excluded from work due to a workplace exposure. If employees are excluded from work, they must be provided with information on COVID-19 benefits available to them, such as paid sick leave, paid vacation, or State Disability Insurance.
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Employees are no longer required to participate in any kind of daily screening.
Not all the administrative burdens have been removed, though. Major outbreaks – when there are 20+ COVID-19 cases within a 30-day period – must be reported to Cal/OSHA, and employers must notify employees “as soon as possible” of close contact with COVID-19 cases. Also, new legislation effective January 1, 2023 specifies that employers must post written notice about workplace COVID cases for at least 15 days.
The definition of “close contact’ has also changed. Only in indoor spaces of over 400,000 cubic feet does the familiar definition apply (being within 6 feet for a cumulative 15 minutes over 24 hours). For smaller spaces, close contact happens when individuals share the same indoor airspace for a cumulative 15 minutes or more over 24 hours. “Airspace” has not been defined, but the CDPH provided, as examples, “home, clinic waiting room, airplane.”
Other Resources
Cal/OSHA has provided a courtesy copy of the final text of the non-emergency regulation, with changes stricken. They have also provided a two-page document summarizing some of these changes.
01.09.23
COVID-19 Update: Cal/OSHA Is Ready to End Exclusion Pay Requirements
COVID-19
The “exclusion pay” requirement is almost behind us – but not quite. 
“Exclusion pay” refers to the requirement that an employer maintain “an employee’s earnings, wages, seniority, and all other employee rights and benefits” if the employee is excluded from work for work-related COVID exposure. This benefit was part of part of the original COVID-19 emergency standard, first passed by Cal/OSHA at the end of 2020.
Normally, an emergency temporary standard passed by Cal/OSHA has a short shelf-life. This is by design, encouraging rule makers to follow the strict administrative process for passing regulations. As you know, the COVID-19 standard was extended multiple times, and a December 2021 executive order allowed this emergency standard to continue through the end of 2022.
As the emergency standard expiration deadline loomed, the Cal/OSHA Standards Board was divided by the issue of exclusion pay, with labor advocates pushing for its inclusion in the new non-emergency standard (“non-emergency” because most requirements expire after two years). However, Cal/OSHA ultimately removed it from the standard that they adopted on December 15, 2022.
But don’t be too hasty. The standard does not go into effect until approved by the Office of Administrative Law, and OAL rules dictate that when a regulation is adopted and sent for review, the emergency regulation remains in effect during OAL’s review, up to 30 working days. This means that the emergency COVID-19 standard – technically set to expire last week on December 31 – could potentially extend into February. It remains active today.
The OAL could grant approval of the non-emergency standard sooner than that, of course. For now, though, employers should continue to provide exclusion pay. Sierra HR will update clients as soon as we know an official exclusion pay end date.
You can find the non-emergency COVID standard here.
As always, Sierra HR Partners is here to help you navigate the ever-changing landscape of COVID-19 precautions and paid leave benefits. Please contact one of our Consultants with any questions you have.
09.02.22
High Heat Advisory for Outdoor Workers : Cal/OSHA Announces Targeted Inspections
HR NEWS
If you’re like us, you’ve been nervously watching the weather forecast showing local temperatures climbing over 110 degrees through the next week. Be sure your outdoor employees have the proper education and heat illness protections, and your business is ready for a potential Cal/OSHA inspection!
Today, September 2, 2022, Cal/OSHA issued an announcement regarding targeted inspections for several outdoor industries over the next week. Employers in the construction, agriculture, tree-trimming, landscaping, car wash and warehouse industries should take extra precautions for all employees working outdoors and should ensure that company heat illness plans and recordkeeping are up to date.
In a news release last week, the California Department of Industrial Relations reminded employers, “Cal/OSHA’s heat illness prevention standard applies to all outdoor worksites. To prevent heat illness, the law requires employers to provide outdoor workers fresh water, access to shade at 80 degrees and whenever requested by a worker, and cool-down rest breaks in addition to regular breaks.” Employers must “maintain a written prevention plan with training on the signs of heat illness and what to do in case of an emergency.”
If you would like assistance with your high heat procedures or your Heat Illness Prevention Plan, please contact one of the certified Consultants at Sierra HR Partners or Cal/OSHA’s consultation services.
09.02.22
HR Headliner: September 2022
HR Headliner
Supplemental Paid Sick Leave To Be Extended… Again
Much like the cat who (we thought he was a goner but he…) kept coming back, California’s supplemental paid sick leave program is sticking with us, at least through the end of this year. (If you didn’t pick up the reference to the Laurie Berkner song, click here to enjoy!)
Our current supplemental paid sick leave (SPSL) program was implemented in February 2022 (backdated to January 1st) and was set to expire on September 30, 2022. However, Assembly Bill 152 (passed in August by the state Assembly and Senate, and now awaiting Governor Newsom’s signature) will extend the deadline to December 31st.
What Stays The Same?
SPSL will continue to apply only to employers of 26 or more employees. The bill does not change the qualifying reasons for an employee to use SPSL benefits, and does not replenish the available “buckets” of paid time off. If an employee has already used the maximum amount of SPSL, he/she is not entitled to any additional payments.
What Will Change?
Employers will be permitted to require additional diagnostic testing to confirm the need for ongoing SPSL payments. Under the current rules, an employer can require the employee to take a diagnostic test five days after the originally-reported test was taken. The new law will allow a second diagnostic test to be required at least 24 hours later. Employers must make these tests available to employees at no charge.
AB 152 establishes a grant program to assist small businesses (26-49 employees) and non-profit organizations that incur SPSL expenses. Qualified employers could be eligible for up to $50,000 of aid through January 1, 2024. The list of criteria for being deemed a “qualified” small business is extensive, and you may want to consult with legal counsel prior to beginning a claim for these funds.
Please join us in welcoming Spencer Sansom to our Sierra HR team!
Spencer obtained her undergraduate and post-graduate degrees from Ohio State University with a focus on education and management, while being a part of their Women’s Softball team.
Prior to joining Sierra HR, she worked in the Recruiting and Staffing industry in Columbus, Ohio. Outside of work, she spends time with her family and her two dogs. We’re thrilled to have Spencer’s talents as part of our recruiting and background investigation services.
