2.7.22
SDEA hosted another successful employment law update in no small part due to the contributions of our attorney panel; Chris Olmsted from Ogletree Deakins, Lonny Zilberman from Wilson Turner Kosmo and Evan Peña, from Paul Plevin Sullivan and Connaughton; as well as our Keynote speaker, Carolina Bravo-Karimi, from Wilson Turner Kosmo.
Jen & Molly took the time to gather all the questions submitted during the conference and compiled them for you on this blog post.
Do we have to register on CalSavers website even if we have our own retirement program?
Dan from RetriementDNA said it was best to be pro-active and register with CalSavers, www.calsavers.com
We have an ap that allows our employee’s to clock in and out from their cell phone when they are within the GPS of the office- does this help us to prove it was the employees choice to come back early for lunch?
Probably not. In order to decrease liability an employer should have a written statement by an employee that they did not take their full lunch break due to their own choice, and that they were not coerced into signing the statement. Even then, there have been cases that did not go in the employers favor.
So do you pay overtime rate on meal premiums?
No. Meal premium pay is not considered hours worked.
Should we stop using self reporting and switch to a clock in/out method?
If you are having problems with consistency in self-reporting, it would be a good idea to consider another method. State law requires accurate recordkeeping for non-exempt employees’ hours worked, in and out for the day and in and out for meal periods. Good idea to audit your timekeeping practices.
What is PAGA?
PAGA stands for the Private Attorney General Act. In essence, it allows for a class action level lawsuit to be filed without the Attorney General’s intervention.
Is it accurate that non-competes are unenforceable in CA?
Correct. You cannot prevent an employee from earning a living or working in the same field, trade or industry as their previous employer.
Is ER allowed to ask the EE about prior vaccinations?
Evan addressed this question stating that employers were permitted to ask about previous vaccinations when engaging in the interactive process for an accommodation to the vaccine requirement when it was for religious reasons.
Have there been a lot of lawsuits against employers not paying employees exclusion pay according to cal osha’s ETS?
Consensus with the attorneys was that while at this time they have not seen a lot of Covid-related cases, for exclusion pay or other, they are expecting there to be an uptick in lawsuits.
We have two employees who have erroneously been accruing vacation at an inflated rate. Can we retroactively adjust their vacation time balance?
Vacation accrual error does not make the vacation “earned”, the error can be corrected. It is recommended that written communication be provided to the employee stating that due to an accrual error, the amount of vacation displayed in the system was in error, and that the balance has been corrected to reflect the amount of accrual in accord with the company vacation accrual policy.
We are based out of CA but I have employees now working from their home out of state. Which laws apply to those employees out of state, CA laws or their own state laws?
You apply the state law in which the employee is living and working.
When we have team members come to California to train during those hours if CA. minimum wage is higher than their rate of pay we need to pay higher wage?
The different rate of pay typically does not apply for travel and working in a different location for a short period of time. Pay the rate of pay that is applicable with the state in which the employee regularly works, lives and pays taxes.
If the employer prohibits tips and a customer leaves the tips, does the employer have to give the tip to the employee or is the employer allowed to donate the tips to a food bank or other entity?
Employer must give the tip to the employee.
Didn’t Evan say in his presentation that we can’t require arbitration agreements with employees?
Evan talked about AB 51 which prohibits employers from making arbitration agreements a condition of employment. Evan said (oddly enough) that there are no penalties currently, but that this was going up to the Supreme Court, so stay-tuned!
What will happen to an employer if they cannot afford to pay the exposure pay for their employees?
There is no exception or hardship to the requirement to have to pay exclusion pay when Covid is contracted from work.
There’s been a lot of confusion in the construction industry regarding COVID related sick pay leave (which ended in Sep 2021) and the exclusion pay in Cal OSHA’S ETS. Are you aware of other industries that haven’t paid exclusion pay because they thought it ended with the extended COVID sick pay leave?
Unfortunately, the construction industry is not alone here. Because most employers were previously relying on EPSL and SPSL to pay their employees, there was not a lot of discussion on exclusion pay so a lot of employers are back-tracking on the pay requirements.
Would you recommend to put COVID info in your Employee Handbook?
I think if you are a medical facility, it would be a good idea. The hope is that we won’t have to deal with this forever and including it in the handbook will be irrelevant. You can incorporate language into your safety policies that could be more general and consider a teleworking policy.
How does an employee prove they were exposed in the workplace?
According to Chris Olmsted, there is a presumption that the employee contracted it at work unless proven otherwise.
What if someone tests positive, is excluded for 5 days, tests on day 5, and tests positive again? Are they required to exclude again for 5 more days and test again on day 5? And keep doing this until they test negative? Or do you just let them back after a total of 10 days?
If they test positive on day 5, they should continue to isolate for a total of at least 10 days. They can return to work after 10 days as long as they have had no fever without the use of medication and symptoms have improved.
Are we required to pay exclusion pay if it is not known how they caught COVID? Is exclusion pay in addition to sick pay?
Employees must receive exclusion pay if they contract COVID at work, and the presumption is that COVID was contracted at work unless the employer can prove otherwise (like the employee said they were at a party where someone tested positive). Exclusion pay can come from an employee’s sick leave bank, but if the employee does not have any accrued paid time off, the employer is still obligated to provide pay to the employee. When Supplemental Paid Sick Leave is reinstated, that can be applied to exclusion pay and the employer will likely get a tax credit.
Does ETS apply if the employee is exposed to Covid at work and can WFH but are too sick to work?
Yes. If an employee is excluded from work but can continue to work for home, wages for hours worked would be due. If the employee is too ill to work, then exclusion pay would apply.
What questions do you ask to insure COVID was not work related?
If you were aware of the employee being in large crowds, or at a large family function, on vacation, a concert, a sporting event, etc., it would be good to explore these other possible options with the employee.
If they contract COVID and are actually sick, do we pay sick time?
Employees must receive exclusion pay if they contract COVID at work, and the presumption is that COVID was contracted at work unless the employer can prove otherwise (like the employee said they were at a party where someone tested positive). Exclusion pay can come from an employee’s sick leave bank, but if the employee does not have any accrued paid time off, the employer is still obligated to provide pay to the employee. When Supplemental Paid Sick Leave is reinstated, that can be applied to exclusion pay and the employer will likely get a tax credit.
What if an employee is not required to be excluded or quarantine based on their vaccination status (i.e. boosted) but would prefer to do so? (non workplace contraction)
Then the employer would not be required to pay the employee. The employee could work from home if this is an option, take the time off without pay or receive PTO for time off.
Does the exclusion pay only apply to full-time employees?
No. All employees would be eligible for exclusion pay.Remember that SDEA is here to help and provide guidance.
Remember, SDEA members have access to unlimited consultation with our HR Consultants; just a call away — 858.505.0024.