Due to the ever-changing California employment law as well as federal and local laws dealing with employee rights, it is essential for Human Resources (HR) departments to make subsequent changes to employee handbooks, policies and procedures. Realistically, employee handbooks cannot be amended every time a new law or rule takes effect. However, once a year handbooks and employee policies should be updated to reflect the most recent and important changes in employment laws. And whether it's updates to a handbook, or changes to employment-related policies, legal counsel can help to ensure all applicable updates have been made in accordance with state and federal laws.
A recent post on the Society for Human Resources Management (SHRM) website highlights topics that likely require updating in 2016. The topics covered below have been excerpted from the SHRM post.
Employees are entitled to reasonable accommodations under certain circumstances, such as for physical and mental health conditions; for religious beliefs, practices and observances; and for pregnancy, childbirth and related medical issues. (Several states and localities have enacted laws protecting pregnant workers as well.) But not all workers who might want an accommodation—or who qualify for one—make a clear statement requesting one.
Employers should spell out in their handbooks not only the legal basis for accommodations but also the company's intention to comply with them when reasonable. Managers must be put on notice that, if a worker mentions a condition that might qualify, they should ask if the employee is seeking an accommodation.
Many handbooks say the organization will not tolerate retaliation, which in recent years has been the most common charge brought by the U.S. Equal Employment Opportunity Commission (EEOC). But not all such passages state that they protect witnesses and others who participate in an investigation of a retaliation claim. “This is often a major gap in EEO [equal employment opportunity] policies,” says Jonathan A. Segal, a partner at the law firm Duane Morris in Philadelphia.
In addition, the handbook should state that the employer cannot promise confidentiality for people who make retaliation complaints. Instead, it can say that their identities will be revealed only on a need-to-know basis. The process must be fair for both the person making the retaliation claim and the individual who is being accused.
Wages and Payroll
Two pay-related issues—unauthorized overtime and improper deductions from workers' pay—frequently trip up employers and should be addressed in writing to minimize legal liability. With respect to the first issue, employers are watching to see what happens with the proposed changes to the federal overtime regulations, although it is too early to know what handbook revisions will be necessary as a result.
It's not uncommon for people to work more hours in a pay period than planned. Federal law makes it clear that, if employees qualify for overtime, they must be paid for the additional work they do outside their normal hours. However, companies should state in their handbooks that employees may not work overtime without advance permission from their manager and that managers can discipline employees after they work unapproved overtime. It also should be made clear that nonexempt employees should not access job-related e-mails or conduct other business outside of work hours, which can trigger pay issues.
If an organization makes an improper deduction from a worker's pay, it can correct the mistake, including through the payment of overtime wages if warranted. If it corrects the mistake, the employer might qualify for a U.S. Department of Labor (DOL) safe harbor provision shielding it from government penalties. The handbook should spell out practices that the company engages in—and does not engage in—with regard to pay, noting that it will make good-faith efforts to correct mistakes when alerted to them.
Paid Family and Sick Leave
States have passed several significant employment laws in recent years, and municipalities are joining the trend. For example, as of July 2015, California law requires employers to provide workers with paid sick leave; according to the National Conference of State Legislatures, Connecticut, Massachusetts and Oregon have similar measures. Further, California, New Jersey and Rhode Island mandate paid family leave. Some states require time off for emergency responders or disaster workers. And a new California law is designed to close the wage gap between men and women by requiring companies to justify differences in pay between the sexes for the same work.
California employment law
If you have any questions about California employment law, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.