All California Employers with 5+ Employees Must Provide Sexual Harassment Training in 2019, Even if Trained in 2018

HARASSMENTOn September 30, 2018, Governor Jerry Brown signed into law S.B. 1343, which now requires that employers with 5 or more employees in California provide 1 hour of sexual harassment and abusive conduct training to non-managerial employees, and 2 hours for managerial employees once every two years. Managerial employees must receive training within 6 months of hire or promotion.

BY WHAT DATE MUST EMPLOYEES BE TRAINED?

calendarAll managerial and non-managerial employees must receive training by January 1, 2020. After January 1, 2020, employees must be retrained once every two years. That means that all employees statewide must be retrained again by January 1, 2022.

WHAT IF MY EMPLOYEES WERE TRAINED BETWEEN JANUARY 1 AND DECEMBER 31, 2018?

The law requires that employees be trained during calendar year 2019. According to the recently released DFEH FAQsemployees who were trained in 2018 or before will need to be retrained.

S.B. 1343 requires that the California Department of Employment and Fair Housing (DFEH) make online training courses available on the prevention of sexual harassment and abusive conduct in the workplace. However, DFEH does not expect to have such trainings available until late 2019. Therefore, in order to ensure that your employees receive the required training by January 1, 2020, it is best to schedule training now to secure the availability of a trainer, account for any employee make-up sessions, and to train in multiple sessions to stagger the number of employees who are taken away from work to attend training. Continue reading

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When Is the Best Time to Apply for an H-1B Employee Visa?

H-1B visaThe most highly anticipated visa of the year begins its application season in Q1 2019. The coveted H-1B visa allows companies in the United States to temporarily employ foreign workers in jobs that are “specialty occupation” positions, which involve the theoretical and practical application of a body of highly specialized knowledge.  H-1B visa holders often possess STEM degrees, such as jobs in fields such as science, engineering, logistics, and information technology.  To apply for an H-1B visa, the applicant must have a bona fide job offer from a U.S. employer, a Bachelor’s Degree or higher in their specific specialty or its equivalent, and meet the other requirements of the visa.

The H-1B visa is valid for three years, with an optional three-year extension, and provides the employee with the opportunity to apply for a Green Card if sponsored by the employer.  Accordingly, because the H-1B visa can last for 6 years (and even longer under some circumstances), the H-1B visa is one of the most popular ways for foreign professionals obtain a work visa, and ultimately, a Green Card in the United States. 

US FlagAs H-1B applications require a third-party academic credential evaluation of foreign degrees and the processing of a Labor Condition Application with the Department of Labor before an applicant is eligible to file an H-1B application with the U.S. Citizenship and Immigration Services (USCIS), H-1B applications can take 2-4 months to prepare.  Therefore, a prudent applicant will begin his or her application preparation in December or January because it can take several months to get documentation prepared and signed by the employer, obtain important documents from third parties, and have the application prepared by an attorney. Continue reading

New Year, New Company Policies

business partnersAs companies grow and evolve over time, it soon becomes clear that they will outgrow their employee and operations policies–that is, if they even had any in the first place!  The best time for a CEO, COO, CFO, and Human Resources Department is to reassess these policies is at the end of the year, and to roll out new policies at the start of a new year.  Every January, there are changes that will take place anyway (such as updated IRS mileage reimbursement rates and local minimum wage rates), so it’s a good time to include policy updates when you provide this information to employees all at once.  There are numerous policies you can begin revising now to issue to your staff in January. Read further to begin your end of year action plan:

1. Employee Handbook

EmployeeHandbook_Pop_6467.jpgThe first item that should be addressed is the company Employee Handbook. If your company does not have one, or has not updated an existing one in more than a year, it’s time to speak with an attorney about creating or updating your Handbook.  In fact, for companies that have more than 5 employees, a Handbook is a no-brainer because it will have clauses in it that you are required to provide to employees (for example, Pregnancy Disability Leave is available for employees at companies with 5 or more employees, and the Employee Handbook is the best place to provide this information to employees).  Besides using the Handbook as the opportunity to explain all of the California mandatory leave-laws, paid sick leave time, and cell phone reimbursement policy, you can use this as a forum to explain the company’s social media, use of technology, dress code, tardiness, absentee, and drug/alcohol use policies. You can also outline which behaviors will result in discipline or termination. Continue reading

Will the H-1B Lottery Change in 2019?

H-1B visaIn an attempt to change the lottery system for H-1B applications, The U.S. Department of Homeland Security (DHS) proposed a rule that would require all H-1B petitioners to pre-register online for the H-1B lottery prior to submitting their H-1B filings. According to the proposed rule, only those H-1B petitions that have been selected in the lottery could then be submitted for the adjudication by USCIS. The rule is currently under review at the Office of Management and Budget (OBM), which is the first step toward implementing such changes.

Other proposed changes would benefit applicants with Master’s Degrees by adding them to the initial round of 65,000 Bachelor’s Degree applicant visa spots lottery.  Then, if there are any Master’s Degree applications left over after the initial lottery round, the remaining Master’s Degree applications will be added to the lottery for the remaining 20,000 Master’s Degree cap. Continue reading

Has Your Company Been Reimbursing its Employees for Personal Cell Phone Use on the Job?

by Jennifer A. Grady, Esq.

cell phone 2Since January 1, 2016, California employers must reimburse employees for use of their personal cell phones for mandatory business purposes.  (Cochran v. Schwan’s Home Service, Inc). This ruling affects millions of employers who must update their company policies in order to stay compliant with the new law.  While this law has been on the books for over two years now, it appears as though many companies have not addressed this law or made it part of their employee reimbursement practices.  Is your company reimbursing its employees for their cell phone call and data usage?  Read below for policy suggestions.

What does this mean for employers?

According to Cochran, California employers must indemnify employees for all “necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” Unfortunately, even four years after this case was decided, the exact measure of reimbursement is still somewhat unclear.  While the court in Cochran determined that employers must consistently reimburse employees a “reasonable percentage,” it did not define what is reasonable. Furthermore, the employer must reimburse the employee even if the employee does not incur any additional expense on his or her cell phone/data plan as the result of using the device for work-related purposes (i.e. if the client has unlimited talk, text, and data plans).

This law is now reflected in California Labor Code section 2082: Continue reading

Must-Read for All Employers: Gov. Brown Further Expands Sexual Harassment Laws in California

Brown lawOn September 30, 2018, California Governor Jerry Brown signed over a dozen bills into law with the intent on making the Golden State the leader in the nation on the much-analyzed and discussed topic of sexual harassment.

Governor Brown signed his last bill on Sunday night.  Over his career, he signed nearly 20,000 bills, including 1,016 this year. The new laws, on a range of issues from climate change to criminal justice to gender issues, place California on the “left coast” politically.  Brown’s ambitions can be summarized by his statement that, “We are going to be the moral compass and the policy trendsetter of the country.”

While these new laws will benefit employees and address serious and relevant issues, they will continue to place more demands on employers across California who attempt to comply with the most legislated corporate territory in the country.

A full list of Governor Browns approvals and vetoes can be found in his Legislative Update.  Of the dozens of bills signed into law on September 30, the most relevant on this topic include the following: Continue reading

California Passes Law Requiring Boards of Publicly-Held Corporations to Include Women by 2019 (SB 826)

woman on boardOn September 30, 2018, California Governor Jerry Brown signed into law a radical initiative to add women to corporate boards of directors for publicly-held corporations headquartered in California.   According to Brown in a letter to the California State Senate, “Given all the special privileges that corporations have enjoyed for so long, it’s high time corporate boards include the people who constitute more than half the ‘persons’ in America.”  The California Senate approved Senate Bill 826 by a vote of 23 to 9 after the State Assembly narrowly passed the proposal with the bare minimum 41 votes a day earlier.  The Bill was then approved by the Governor and filed with the California Secretary of State.

Brown lawIn an effort to “close the gender gap” in business, the new law requires publicly traded corporations whose principal executive offices are headquartered in California to include at least one woman on their boards of directors by the end of 2019.  By December 31, 2021, this requirement will expand to require that a minimum of two women must sit on boards with five (5) members, and there must be at least three women on boards with six or more (6+) members.  The corporations’ SEC 10-K form will be used to determine the location of the principal executive offices.

The bill requires that by July 1, 2019, the Secretary of State publish the number of domestic and foreign corporations whose principal executive offices are located in California and who have at least one female director. The bill also authorizes the Secretary of State to impose fines for violations of the bill, and provides that funds from these fines are to be available, upon appropriation, to offset the cost of administering the bill.

Penalties for non-compliance will be high, including fines of $100,000 for a first violation and $300,000 for a second or subsequent violation.  Companies must demonstrate their compliance by filing their board member information with the Secretary of State by the respective deadlines. Continue reading

Updates to California Labor Law Posters

CapitolStay up to date with recent changes to California labor law posters!  In order for your business to stay in compliance with these recent changes, the updated posting(s) must be downloaded, printed, and then posted next to your current labor law poster. Remember, labor law posters must be posted in a conspicuous location so that all employees may see them.

1. EDD- Unemployment Insurance, Disability Insurance, Paid Family Leave:

The California Employment Development Department (EDD) has updated its EDD notice regarding Unemployment Insurance, Disability Insurance, and Paid Family Leave. The updated notice reflects a change to the online application platform, as well as formatting changes. The department recommends maintaining updated information, however, this update will not be mandatory until January 1, 2019. The poster revision date is August 8, 2018.

Continue reading

Conduct Your Own I-9 Audit Before ICE Does: 6 Tips for Avoiding Costly Mistakes

i-9

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since January 2018. A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.

During the second phase of the operation from July 16 to 20, 2018, HSI served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, HSI served 2,540 NOIs and made 61 arrests.

ICE 2While the agency routinely conducts worksite investigations to uphold federal law, HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. The seriousness of these investigations is described by Mr. Benner: “This is not a victimless crime.  Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.

HSI uses a three-pronged approach to worksite enforcement: (1) compliance, from I-9 inspections, civil fines, and referrals for debarment; (2) enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and (3) outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.

From Oct. 1, 2017, through July 20, 2018, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017 (October 2016 to September 2017), HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

What is the I-9 Form?

The I-9 Form is an instrumental part of the new employee on boarding process, and should be completed within the first 3 days of hire.  This form is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens.

To many employers and HR professionals, an I-9 form may appear to be a simple piece of hiring paperwork. However, the one page I-9 form comes with enough rules and regulations to fill a 69-page how-to manual, the M-274 Handbook for Employers.

In order to ensure compliance with the I-9 requirements, it is recommend that employers conduct and audit of their files to ensure that there is a signed I-9 form on file for each employee.  These forms should be stored together in a separate I-9 file, rather than each employee’s personnel file.  This way, in the event USCIS conducts an audit, the employer only has to turn over the I-9 file, as opposed to information about the employee that is outside the scope of the agency’s audit.  Read below for an explanation of the I-9 audits and tips to be prepared in the event you receive a visit from US Immigration and Customs Enforcement (ICE).
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Cities and Counties Across California Increased the Minimum Wage Again on July 1, 2018- Is Yours Included? (See Our Chart)

los angelesTen cities and counties across California increased their minimum wages again on July 1, 2018, including the following:

  1. El Cerrito
  2. Emeryville
  3. City of Los Angeles
  4. County of Los Angeles (unincorporated areas)
  5. Malibu
  6. Milpitas
  7. Pasadena
  8. San Francisco City and County
  9. San Leandro; and
  10. Santa Monica.

Employers should examine the rules for every jurisdiction in which they operate, not just the one or more where they might have offices. As different municipalities have different definitions of “covered employer” and/or “covered employee,” employers may be faced with different rules for the various jurisdictions in which they do business.  When there are conflicting requirements in the laws, the employer must follow the stricter standard – the one that is the most generous to the employee.

For example, a delivery company with drivers routinely working in multiple cities or counties each week may well have separate minimum wage compliance issues simultaneously.  For some cities, these rates apply when an employee works just two or more hours per week in the jurisdiction.  It is therefore imperative that you check the requirements for each city in which your employees work.

A covered employer must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. Click the above city/county link(s) to download the most current notice.

California picAs of January 1, 2018, the California minimum wage is $11.00 for employers with 26 or more employees, and $10.50 for employers with 25 or fewer employees.  This will increase to $12.00/ $11.00 respectively on January 1, 2019.

In addition, the cities below have their own minimum wage ordinances that go into effect on January or July each year (with the exception of Berkeley).  See the chart below for more details: Continue reading

Additional Employer Requirements Under San Francisco Paid Parental Leave Ordinance

San FranciscoIn California, employees can apply for paid family leave (PFL) benefits administered through the California’s Employment Development Department (EDD).  These PFL benefits are funded through employee-paid payroll taxes, and provide eligible employees with six (6) weeks of partial wage replacement.  No state-wide law requires that employers offer paid parental leave.

San Francisco, however, has enacted a local ordinance, the San Francisco Paid Parental Leave Ordinance (SFPPLO), which requires that covered employers supplement an employee’s PFL benefits.  As of January 1, 2018, the SFPPLO applies to any San Francisco-based employer with 20 or more employees worldwide.  Thus, any employer with more than 20 employees would need to offer eligible employees who work in San Francisco with fully paid leave that complies with the SFPPLO and would need to revise its parental policy accordingly. Continue reading

USCIS Reaches FY 2019 H-1B Cap in Just Four Days

enter-usa-h1b-visaWASHINGTON, D.C. – On April 6, 2018, U.S. Citizenship and Immigration Services (USCIS) reached the congressionally-mandated 65,000 visa H-1B cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the “Master’s cap.”

USCIS began accepting applications on Monday, April 2, and reached its cap within just four days.  It will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

As of May 15, USCIS completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in its computer-generated random selection process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.
Based on last year’s applications, receipt notices were sent out around May for cases that were accepted in the lottery, and applications that did not pass the lottery were returned (along with the original application and filing fees), by July.
Additionally, USCIS may transfer some Form I-129 H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally-mandated FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Continue reading

The Grady Firm to Host 2018 Labor Law Update Seminar on February 7 in Beverly Hills, CA

Beverly hillsOn Wednesday, February 7, 2018, Jennifer Grady, Esq. will host the 2018 Labor Law Update, sponsored by The Grady Firm, P.C. and the California Employers Association (CEA) in Beverly Hills, California. This event will cover recent, drastic changes to employment law and how such changes may impact California employers.  There will be time for Questions and Answers at the end of the presentation, and the opportunity to network with other business owners.

Governor brown signs lawsLate last year, Governor Jerry Brown signed more than 800 new bills into law. Many new laws significantly impact employers, including: Continue reading

IRS Mileage Reimbursement Rates Increase in 2018

fee-increaseBeginning January 1, 2018, the standard mileage rates designated by the Internal Revenue Service (IRS) are the following:

  1. 54.5 cents per mile for the use of a car, van, pickup or panel truck for business miles driven (up 1 cent from 2017).
  2. 18 cents per mile driven for medical or moving purposes (up 1 cent from 2017).
  3. 14 cents per mile driven in service of charitable organizations (unchanged).

The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs.

Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates. Continue reading

California Labor and Employment Updates for 2018

CapitolThe California Legislature has passed the following labor and employment bills, which will become law effective January 2018.

PRIOR SALARY AND PRIOR CONVICTIONS

Salary History Information

AB 168 prohibits employers from asking job applicants for “salary history information,” which includes both compensation and benefits.  But where an applicant “voluntarily and without prompting” discloses salary history information, the employer may rely upon the information in setting the applicant’s starting salary.  As a result, questions about prior salary may not be asked in job applications or interviews by an employer or an agent of the employer.

Additionally, AB 168 requires employers to provide the pay scale for a position if the applicant requests it.  This bill makes California the first jurisdiction in the country to require that employers provide applicants with the pay scale for a position, upon “reasonable request.”

This bill applies to employers, both private and public, and will become effective January 1, 2018. Continue reading