Prefer to read? (Transcript)
Speaker 0 00:09 .
Speaker 1 00:13 Good morning and welcome to another episode of business and legal talk with noon. Claudine, I am your host Leo Landa Verde and my cohost,
Speaker 2 00:22 Claudine Sharon from the Sharon law firm. Awesome. Good morning. Hi. Good morning. Gosh, it’s been so long. Good morning. Have you had your Wheaties?
Speaker 1 00:31 Uh, no, not yet. I was, I’m dragging today, but thanks to a good cup of Java and Salvadorean coffee. My U I N ah, you know, they didn’t get a coffee that you just, it’s not burnt. It’s uh, it’s, it’s you, you, you, it’s best to have it with nothing or other than just the experience itself. So if you ever have coffee that is not burnt, you don’t want to go back.
Speaker 2 00:57 You don’t want to go back. And I, I thank you for introducing me to that Dorian coffee. He has luck. What a Salvadorian farmer. Yes. And um, it is really, really good. I mean, if somebody who really loves coffee, loves black coffee and loves dark coffee and no, I don’t want warm Brown water. I want dark, thick coffee fired up. It’s working, it’s working. And I did not know the difference between burnt coffee beans and, uh, just nicely roasted dark coffee.
Speaker 1 01:25 Do you know that? Here’s a little factoid that incidentally, 25% of a Dutch bros blend their, their, their best-selling blend at whatever coffee they use. Right. It comes from one plantation in El Salvador. Really? One provides 25% of the blend of all Dutch bros. Lao. I didn’t know that. Yeah, there was, um, there was a show, um, have you ever watched show secret millionaire? It was an ABC. It was one of those like, um, not secret millionaire, uh, undercover boss. Yes. I watch that. I do know that one of the, so it was, uh, two brothers, you know, the Dutch brothers, uh, one passed away, the older brother and then the younger brother is running the, the, you know, they’re based in Oregon and we didn’t know that. Okay. Yeah. So the, the show was, uh, one of them actually going under cover an entire operation at Dutch bros.
Speaker 1 02:19 and, um, it really is, you know, we did a show on branding not too long ago, actually last week. And, uh, we talked about this. So they really live their brand. So in the show he goes to, you know, he goes to businesses store, there’s a, there’s kind of a, a process to how they do the show. You go to, you know, to their manufacturing plant, if you have one, uh, then you go to their offices, you could go to the corporate office, you go to their, their locations and you’re going to make a tour of your entire business under cover. So nobody knows. Nobody’s supposed to know. Your employees are not supposed to know who they’re dealing with. Right. And there’s always this thing about being a, I’m kind of, somebody is applying to a for an internship and is being taped, but the whatever is there somehow they make an excuse for the cameras. Cause I’m always looking at it. I have to make sure getting the cameras in there. Correct. But so this guy goes and eat Lance. And I learned, that’s when I learned that there is one plantation in a Salvador where 25% of the blend comes. I was shocked being from El Salvador in knowing how good the coffee is. It didn’t surprise me. But Starbucks actually has plantations in El Salvador. Oh, I didn’t know that. Yeah. Yes. Well really, so anyway, we’re not talking about coffee today, but we digress. But we could, but today’s show is very important.
Speaker 2 03:34 It is. And, and coffee might be a, a more joyful subject. Um, yeah, we would be remiss if we wound up the year of 2019 without talking about what employment law changes are coming around the horizon. And there’s a few that I think are going to surprise people. Um, our governor has been signing bills, uh, like wildfire, so it’s hard for us to even keep up with, um, and so kind of doing, we’re not gonna do a real deep dive on him today because I, my concern is every time we bring up a subject like this, or we kind of announced something new, it brings on, uh, about, you know, 30 what, F questions. And unfortunately, we can’t just, we can’t really go that far into it on a, on a show like this. But for anybody who’s listening, if you have any questions or you think this may apply to you, you know, certainly give us a call or give your attorney a call and you know, sit down.
Speaker 2 04:29 Um, it is good to go onto the internet and you can read about it, but you have to be careful because the law is full of, um, caveats and it’s full of, um, slight variations and, and slight variations may ultimately result in a very big problem. And so while I do encourage people to go online and to try to educate yourself and read about the subject, um, some of my best and most successful clients are our clients that really, really understand their business and they understand the framework that they’re operating within. Um, and, and because we are in an office at a different site and we are not there with our clients on a day to day basis, um, it’s important that the client and you as a business owner really understand the framework for which your business operates in. Um, but we have a whole list of, of new rules that are coming down the pike for 2020 and 2021 and we’re not going to hit all of them or just going to hit a few. And then I, um, I think it’s important that we kind of touch on the subject of harassment before the, the whole country.
Speaker 1 05:38 Go ahead. You’re, you’re, you’re the leading counsel in this one.
Speaker 2 05:42 We, OK. So, um, what one that, it might be surprising to a lot of people is that there is now AB seven 49, which is a ban on no rehire provisions in the settlement agreement. So I know what’s that all about? So it almost is counterintuitive because you think, okay, as an employer, if I have, um, a settlement agreement with an employee, okay. The settlement agreement indicates that we had a dispute. Right. Okay. And we’ve settled it and then, um, what I cannot ban them from being hired again. How’s that work? It’s going to be interesting. So AB seven 49 prohibits and invalidates any provision in a settlement agreement entered into or on AF or after, excuse me, January 21 or excuse me, January one 2020. Um, and it prevents workers from obtaining future employment with the settling employer or its affiliated companies. So just to clarify again, if you have that ban in your settlement agreement, you are probably going to be in violation of AB seven 49 and the law applies to any employees who have filed a claim against their employer in court.
Speaker 2 06:48 Okay. So that’s step number one. You actually have to have a have filed against your employer court before an administrative agency or an alternative dispute resolution forum. So that would mean mediation or arbitration or some sort of alternative dispute resolution, um, through the employer or through the employers internal complaint process. So in court, some sort of a mediation, some sort of a, a formal forum or within the employers framework of a formal complaint forum. If the employee has complained internally and a severance agreement is reached with the employee without any litigation being filed, the employer would still be restricted from placing a no rehire provision in the severance agreements.
Speaker 1 07:36 So let me understand. I mean, you know, there’s a whole lot that you just read right now and I’m not an attorney, but, uh, I play one on TV. Not just kidding. Um, so you had a dispute, a clearly you parted ways. You were not longer, uh, you know, going in the same direction with the employee and decided to go separate directions. Right. How would that work? Like, I mean, I would have to have hundreds of employees and I don’t never meet the employees and that person was, they go and somehow he makes his way back, applies for a job. Uh, and you can, you don’t know that that person had or you basically have to look the other way. Um,
Speaker 2 08:16 exactly. And, and, and there’s one more caveat to this and I don’t want to miss it because it is important. Um, and then I’ll answer your question cause I know where you’re going with this. The law does not prohibit or otherwise restrict an employer from preventing an employee from obtaining future employment if the employer has, um, has made a good faith determination that the person engaged in sexual harassment or some sort of sexual assault. So we’re taking those sexual crimes and we’re putting those aside that can, that can bring about a no rehire, um, label on this employee. But it’s, it’s as if, um, what we’re trying to do is we’re trying to take the no retaliation a step further in that employers are prohibited now from retaliating against an employee to say, forget about the word retaliation. You’re not qualified to do the job.
Speaker 2 09:06 You will not qualify it in the first place to do the job. And something happened and you’d gone and you come back and apply and you’re not based on the merits or your resume, you’re not qualified. Can I as an employer be, what are my rights? Well, you should, you should be taking the employee through the entire, um, employment application process. And then if you get to a point where you can absolutely articulate that they are not being hired based on qualifications, that’s a different thing. This is talking about a band that is in your settlement agreement that says employee is labeled as a no hire. Like you’ve call are you call the business. We’re not even talking to you. You’re a no hire. There’s no, don’t put the application in. Go through the employment. Basically our band singling them out. Yep. You’re saying you’re saying because we had a dispute, you are an absolute new hire ever again.
Speaker 2 09:54 Hope that makes sense to the listener. Um, it’s, it’s a little bit complicated. It’s not, it’s not super horrible, but I can see how, uh, right off the bat people are going to hear this and they’re going to go, wait a minute, I just go through a dispute process with this employee, which might bring about some really negative feelings towards each other. Right. But the employee can come back and say, no, no, you’re going to, you’re going to still employ me. Um, I wanna I want him to still work here. It’s very difficult for people to deal with because then it would then we’ve also had, you know, imagine it that we have layers of management and so the manager who has had to deal with this person and deal with the disputes and, and probably defend themselves to some extent or you know, other people within the department. And now you’re saying that this person absolutely has a right to reapply and they can’t, you cannot include this no hire, um, in their settlement agreement. Okay. Well we probably need to pause before we get into a break. Uh, I’m sorry. We do go to a break before we take another topic. So stay tuned with the right back business and legal talk with you and Claudia. Perfect.
Speaker 4 11:24 I know it’s not the most exciting topic, but one topic that we need to talk about. Nonetheless, it’s, you know, labor law updates, labor law updates
Speaker 2 11:34 is this owner should, should know the basics. Um, if you have any questions, please reach out to somebody and call, um, sit down and talk with somebody. You know, definitely go on the internet. I don’t want to say don’t go on the inner, go on the internet and read if you get confused. Um, but certainly read and then confirm with somebody that you, you and work with. Um, so a couple of other ones that, that I think are going to be really important for, for employers who have dealt with the labor board, those, um, the labor board used to traditionally only deal with unpaid wages. Um, and now this as of this year, SB six 88 expands the labor commissioner’s authority to pursue wage claims. Now, SB six 88 expands the enforcement of a bill and abilities of the labor commissioner. This is scary for a lot of people.
Speaker 2 12:22 If you have been through the labor board or there’s um, employers that we work with, the clients we work with all the time, who, who have been through labor commissioner processes, um, the labor commissioner is where an employee, he can go to file a claim for unpaid wages. So what it is, is it’s important that business owners remember that the labor commissioner is there to ensure that employees get paid. Um, and so the labor commissioner is really an advocate for the employee employees. So anybody who goes into a labor hearing, I’m a business owner, please be aware of that, understand that that entity is there on behalf of the employee. That doesn’t mean just final wages. It could be any wage, any, any unpaid wages. And it was up until now, just unpaid wages. And they would deal with the unpaid wages. They would also deal with any penalties that were associated.
Speaker 2 13:13 But the labor board or the labor commissioner’s office, we’ll put together the entire claim for the employee. They’ll do all the mathematical equations, they’ll come, you know, read, translate or interpret the code and they will, you know, really help the employee, uh, along the way. And so as a business owner, it’s important that you understand when you walk in the door, you’re kind of behind the April. Um, and so that’s great to know. That is great to know. Um, and it is good because it is a really accessible thing for employees. Employees don’t have to pay to file a claim, although the labor commissioner’s board or the labor board is very backed up, um, but they don’t have to pay for it. So it is a very accessible way for employees to, you know, read, address their, their grievances. I’m not being paid anyway. Previously, as I said, the labor commissioner only enforced actions for violations, uh, alleging unpaid wages.
Speaker 2 14:05 And six 88 now provides the labor commissioner with the authority to issue citations for violation of unpaid wages that were less than the wages set by the contract in excess of minimum wage. So it, along with that we have AB six 73 which permits employees to recover civil penalties for unpaid wages. So the civil penalties were previously enforceable only through an action by the labor commissioner. And now the employee is entitled to recover $100 for each initial violation for failure to pay each employee. And for a subsequent violation or any willful intention, violation of $200 for each failure to pay employers will also be liable for 25% of the amount unlawfully withheld for certain labor code violations. AB six 73 limits. Employee recovery to statutory penalties or penalties under the private attorney General’s act, but not both. And we’ve talked about Pago briefly. Um, so essentially what it does is it, it’s allowing for that 25% of the amount and $100 for the first violation and 200 for the, the second violation.
Speaker 2 15:16 So for example, if you have failed to pay overtime over the course of say six months and you pay your employees twice a month, you will have 12 violations. The first one is $100 and everyone thereafter will be $200. It adds up really, really quickly. And then on top of it, we’re throwing another 25% of the amount unlawfully withheld, um, uncertain labeled labor codes. So you could be really, um, you could really be sizing up some serious penalties. Really the moral of the story is really, really work with a good payroll company and work with a payroll company who understands payroll and how it needs to be paid out.
Speaker 1 16:01 I, I, we said before in a show that I would not recommend an employer to do their own payroll. No. Um, I guess it’s too much liability on unpaid payroll taxes, which by the way, cannot be. Um, penalties cannot be wavered on their bankruptcy, uh, for, uh, because the, uh, the payroll penalties are attached to you as a person. I don’t know if a lot of people, a lot of business owners don’t know that payroll tax, payroll tax violations are the capital punishment. You know, they’re unforgivable, right? So people, you need to understand that payroll is not something that you take lightly if you decide to hire him. And you know, in a sign of growth for a company is hiring, right? You’re growing, you need the human assets, you know, and, and they could be an asset if you treat it that way, but they can also become a liability if you don’t treat, if you treat them unfairly. So play by the rules, right and know what the rules are and play by them.
Speaker 2 16:54 So just a basic, I would be remiss if I didn’t just cover this. Please, please, please, please understand that you are required to um, provide a 30 minute duty free lunch break is okay after how many hours that is before I would say five hours before the 59th minute of the fifth hour, your employee better be off the clock and having lunch
Speaker 1 17:18 and they have to leave the PR. They, they have to be free to leave the premises.
Speaker 2 17:22 Um, they, there is some caveats that you can restrict them if you’re like at a factory location or something, you can restrict them to be on the premises, but they have to be duty free and employers get into trouble when employees want to eat lunch at their desk and then the employer’s not really tracking it. And then there’s a dis dispute employee comes back later and says, I didn’t get my lunch break. So it is a good practice. If you can ask your employees to, you know, have lunch in a, in a break room or you know, everybody kind of has to play it by ear depending on your own unique circumstances. But if you do not provide that lunch period, that 30 minute duty free lunch period, you have that violation. And then what happens is you have another violation for not paying correctly.
Speaker 2 18:09 Then you have another violation on top of that for a, um, inaccurate wage statement. And each one of those comes with staged penalty. So it’s 50 for the first one and a hundred for every one there. After the stacking, it’s called stacking up or, yeah, essentially it’s stacking, it’s one, one violation is kind of like a domino effect. It creates three more violations. Um, so every employer, if you have employees that are out in the field and they’re working offsite construction industry, you know, carpet cleaning, residential industries, make sure that your employees are taking their lunch break and the, the threshold is you, you don’t necessarily have to ensure that they are, but you have to continue to provide it. And the way we do it in a way we recommend our clients do it is it’s, it’s written everywhere. It’s, you know, it’s on the, the wage statement.
Speaker 2 19:00 It’s on the employee handbook. It’s, it’s everywhere. We could post it that you please take your lunch break. We want you to take your lunch bag and frankly, employees are better when they get their breaks. So I think, I think we killed them. It killed that one. Okay, so kill, kill that one. Dad. Which other ones should I be worried about? Well, here’s another one. SB one 88 hairstyle. Discrimination. Are they going to discriminate on the news lately? Isn’t it yet known as the crown act? Create a respectful and open workplace for natural hair. It’s called crown. It’s called the crown act. Fitting. SB one 88 expands the fair employment and housing act. That’s via a definition of race to include traits historically associated with race, such as hair, texture and protective hairstyles. The bill defines protective hairstyles as braids, locks and twists. And the law prohibits a workplace dress code and grooming policies that prohibit natural hair, including Afros, braids, twists and locks.
Speaker 2 19:58 So just so you know, um, your employees, um, have the right to have their hair the way they want it. Um, what about the beard? Well, that’s a good question. This doesn’t address beard. Um, usually you are not able to prohibit, um, and unless there is some sort of a safety mechanism. So for example, firemen who the mass don’t fit correctly with a beard. Um, now again though here, here you’re going down the road of all these extra little caveats, so to say. So you say one thing and it brings up 20 what, F questions, you know, but it’s true. Um, so there is an ability to restrict, but it’s, it’s really an, aside from the general business owner, um, natural hair, um, is now you cannot prohibit somebody from having natural hair. Wow. Okay. So we have time for one more. Um, yes. Okay.
Speaker 2 20:49 So one more. SB seven Oh seven is the arbitration agreements, fees and costs. SB seven Oh seven provides that an employers fail to pay costs and fees associated with an arbitration within 30 days of the due date results in a breach of your arbitration agreement. So if you have an agreement with your employees that we will settle any disputes in arbitration, um, thereby waiving the right to it, it waives the right to compel the arbitration. So if you’re more than 30 days for paying your costs and fees, you now are, do not have the protection of that arbitration agreement. You’ve waived it and the bill provides that the employee would in turn be able to withdraw their claim from the arbitration arena and move it over into the the court arena. Um, Newson assigned 15 new employment related bills this year, so that’s good to know.
Speaker 2 21:38 Um, one other one, I think we might have time for one other, one AB nine known as the stop harassment and reporting extension or the share act and it extends the deadline to file harassment discrimination or civil rights related claim under the fair employment and housing act. So existing law prohibits any form of harassment based on a protected category such as race, gender, sexual orientation, age, religion. We’ve talked about those protected classes before. So if you have any harassment that is happening within your, um, your, your company or your business or between employees that is based on race, color, sexual orientation, any of these, these protected classes in California has an expanded list, um, compared to the federal government, um, that the person claiming to be aggrieved by alleged workplace harassment can now verify a, uh, a complaint with the department of fair employment and housing within one year from the date of the incurrence. Now, AB nine extends that to three years.
Speaker 1 22:35 So let me, let me put that in. That’s a big window folks. Yeah, I know. Layman’s terms. So I’m a business owner and I had an employee that quit, right? Resigned, left the post, and never heard. So according to this, they can wake up one morning on the 360, fourth day of the third year. So a thousand days out. And they’re like, you know what? I remember that employer three years ago. I was offended because of this. So they can file right then and there, which means you have to have records to defend yourself. And how long would the whole process takes and how long do we keep those records? Well,
Speaker 2 23:09 we recommend keeping records from anywhere from eight to 10 years. Eight to 10 years longer than the IRS. Yeah. Or at least as long as the IRS, it depends on how big your company is because I mean that could literally be, you know, storing massive amounts of paper. But we, what we want to do is, you know, convert them to electronic files. Um, so stepping aside from that, this is why your employee files are incredibly important. How are you keeping your employee files? What records are you keeping in your employee files? Um, and, and really policing your environment to ensure that employees, especially if you’re dealing perhaps with a younger crowd and maybe an environment that’s a little bit lax, um, or people who maybe are working together and they’re friends outside of work. And so they have a tendency to maybe banter between themselves and it’s friendly.
Speaker 2 24:01 You probably heard, um, the situation that happened, I think it was Clovis unified school district with the two, uh, young men on social media. And one of them, um, was, um, uh, a African American young man and one of them was not. And the one who was not said the N word or put it in post and now, um, was prohibited from graduating. And so, you know, was everybody offended? And now it’s come down to, um, you know, kind of a, an a debate was the friend that he was with that he was supposedly referring to was not offended. They were friends. They talked
Speaker 1 24:35 Bobby, cause I was out there and other people saw it
Speaker 2 24:38 exactly because it was because it’s out there. And so we really, really, really have to be careful of what we’re saying. And sometimes we work with friends or maybe we’ve worked together for a long time and we’ve become friends and we have that kind of banter that’s going on. It is not, it’s just not workplace.
Speaker 1 24:54 Incidentally. And we can cover this more in detail, but I don’t want to forget. So when you’re hiring people and you’re going through your due diligence and checking out this us prospects and you look in the, you know, in the internet and social media, I think that are now lost, prohibited you. You almost do better not checking them out in social media because that could buy a shoe.
Speaker 2 25:12 Well, yeah, we absolutely recommend not using social media. Absolutely.
Speaker 1 25:17 That can be biased for examination and everybody does. But how do you prove that you were in?
Speaker 2 25:22 And, and not only that, um, when you use social media and we all know now that social media has been around for awhile, we all know that what you see on social media is not necessarily true.
Speaker 1 25:32 Correct. That also goes for the good, right, as true. Well everybody, this is fun stuff. Uh, stay tuned. We’ll be right back.
Speaker 1 25:53 Welcome back, miss this illegal talk with Leo and Claudine talking about the things that matter or the things that should matter to you as a business owner. And we are here to help you maximize your cash and help you make as much money as possible so you could pay your income tax. And, or not get sued by doing things that you shouldn’t be doing, right? So this, this segment or this podcast or this, the show today is about risk mitigation, right? How to do things right. You need to know what the law, where there, you know, it or not, you’re responsible for the loss of your state.
Speaker 2 26:26 Absolutely. And, and, and I can tell you that we currently are dealing with a number of cases right now where, um, the violations of the labor codes are super blatant and it’s super bad. Is it? Um, we have, um, we, we ha no, no, no, we would never name names. Um, but we are dealing with right now a business owner who, um, did not have a proper clock in and clock out method for the employees. So the employees were being paid based on what the schedule said, not what people were actually working. And then there was, um, uh, a mechanism by which they wrote down hours, um, you know, on a sheet of paper and had to sign it and submit it to get paid. And that that sheet of paper showed over time and the pay stub showed no overtime. So it’s in writing, it’s, it’s, it’s that could be just negligence.
Speaker 2 27:22 Absolutely. Just not understanding, not understanding the, the rules and, and you know, lunch breaks is probably the biggest one that in overtime, but lunch breaks because people will want to work until two o’clock. Or Hey, if I work through lunch today, can I, can I leave early? That’s the classic I w I’m totally guilty of that. Um, you, yeah, the answer has to be no, you cannot work through lunch and leave early unless you’re leaving at the 59th minute of the fifth hour. Okay. Then you can leave. But they had to have break in between there.
Speaker 1 27:51 Okay. Question. I’m going a little on a tangent, but it’s related to employment matters. So minimum wage is going up. Yeah. In the state of California, so that we have this tier, I think by 2022 years we should be a 15. Correct. Uh, entire state that’s minimum wage. So that’s going to have, uh, not withstanding the ripple effect that it will have on, on employment or on our businesses and especially retail. Yes. Uh, but, but that with God, with that, every time you increase the minimum wage, you increase the, the, the minimum salary that a person must have. Right? If, so, there’s, there’d be overtime exempt, yeah. To be exempt from overtime. So isn’t that just, you can help us with that if you, you know, for those business owners who are listening to the show right now, you need to know if you’re going to put somebody in a salary, there are rules to follow. You cannot just arbitrarily decide, I’m going to pay you $3,000 a month. There are laws and it has to be at least I believe twice the minimum wage. And you have to be in a class that actually allows you to do that. You know, our ministry, there’s an administrative exempt. There is software, you know, people that are in, there are all others, you know, professionals and
Speaker 2 28:56 there’s a whole list of exemptions and they’re really easy to find on the California. Um, DIR websites, um, and does the department industrial relations website. And if you just Google, um, overtime exempt rules that should come up pretty quickly and it’s actually really easy to, to read. And it does go through each one of the exemptions. But it’s important to understand there is people use the word salary. I’m a salaried employee or so-and-so salary. Understanding what that’s all about. That is not that salary and overtime exempt different things. So overtime exempt means you fit into a certain category by nature of your job. And that category is well defined, whether it be sales professional and you name it,
Speaker 1 29:39 I won’t call her, you know that usually high
Speaker 2 29:42 end white collar professionals, accountants, um, software lawyers, managers, not just any managers. So that’s where everybody seems to have the biggest problem is that we want to categorize them as a manager. And because we crack categorize him as a manager, we think that automatically that means their overtime exempt. They’re not, they’re not. Or if they just get paid the same amount every week, that doesn’t mean that their overtime exempt, that would be salary overtime. Exempt means you fit into a particular category and the company does not pay overtime on that. At the same time. If they only work seven hours, they get paid the whole amount. And I think one big thing about the ones that are not clearly defined is that those in men in management that they have to have some freewill there with the job has some ability to make decisions, decisions that you can make on your own without having to consult anybody.
Speaker 2 30:35 And that thing is, that’s a, that’s a, that’s a way to measure how much maturity does this person can exert on their job to make decisions that would warrant them to be in an exempt status. Right? A rule of thumb, policy maker versus policy follower. If you’re a policy maker, if your policy makers a good guidance that you could be exempt. Yup. And it doesn’t mean necessarily creating policy for the company, but it’s policy making in, in your day to day routine. So, for example, um, auto sales, if you have a sales manager and that sales manager can decide what to sell the car for, what options they will put on the fly or not, you know, and they’re, they basically decide, um, you know, if it’s a used car, you know, what, what work we’re going to put into it. If we’re going to put a new paint job and that person makes all those decisions day in and day out and they’re making them by themselves, you may have somebody who is qualified to be overtime exempt.
Speaker 2 31:31 Okay. Got it. So they may be a manager. Manager doesn’t necessarily mean overtime exempt, but we have to look at it. And really before you put somebody on overtime exempt or on quote unquote salary, please consult, definitely consult the DIR website. But definitely, you know, shout out to um, a local, uh, employment attorney just to make sure that you, um, are categorized correctly. Because what we would do then is we would follow that up with a job description that relates to the job that demonstrates what the responsibilities are and how you are, um, qualified as an overtime exempt. So it’s a, we want to create the entire package. We don’t want to just not pay overtime and think, Oh, they’re salary, no problem. So that’s a good, good way to put it. Whether you’re a policy maker or a policy follower. I like that. That’s a great takeaway.
Speaker 2 32:24 It’s kind of, it’s, it’s your short version, a good way to, a good place to start in terms of trying to determine, um, you know, w w where does this person qualify? So where do, where do you want to go from here? What are the things that you want to, you think people, employers should know? Well, I want to touch on AB 25. Um, AB 25 doesn’t go into effect until January, 2021. So we have a whole entire year. And usually when the state gives us an whole entire year to prepare, that means that this is something that going to take some preparation. Just like the, the harassment training that I’d F as shout out if you have not started your harassment training. If you have five or more employees regardless of their managers or not, you need to get your harassment training done by December 31st and that is coming really quickly.
Speaker 2 33:11 Five employees or more. It used to be just management. Now it’s not five employees or more. Okay. Um, okay. So AB 25 is the employees personal information excluded from California consumer privacy act. This bill excludes employees and prospective employee and prospective employees from the consumer definition under the California consumer privacy act until January 21 January one 2021. Um, the law exempts any individuals acting as a job applicant to an employee of owner of director of officer, of medical staff, member of or contractor of that business. And therefore employers have one additional year to comply with the requirements of CCPA pertaining to applicants and employees. Information. AB 25 was passed to assist in clarifying with some aspects of CCPA and the law was passed in 2018 and meant to give consumers certain knowledge about what data companies are collecting about them. And now that data mining is such a big deal and companies are doing it. Um, you, there are companies that have been taking information under the guise of gathering applications and what are they doing with that information? So now the state is reaching out and we are, um, adding the definition of consumer to now applicants. So you have to be extremely careful with what you’re doing with information that you’re, you’re acquiring from various people.
Speaker 1 34:40 Data. It’s becoming a, um, an industry. Uh, and you know, um, if you notice on the, on the employment websites, you’re gonna see a lot more data mining architects, um, because data mining it’s information. It’s the next, you know, gold. You know, it’s, it’s a, it’s like, you know, they’re at a 40 Niners mining for gold that was actual gold. And now the new gold, it’s information and that the company’s the hold that information a K a, you know, the ones that, you know, the, the Googles, the Facebooks, they have the ink control, the information in an understanding patterns of conduct. And you know, we’re talking about branding and understanding your avatar and all that, that, that it’s data, it’s power knowledge is power truly to the nth degree. So it always power but it’s lucrative and it’s very lucrative
Speaker 2 35:30 and you can sell it and it’s something that you can collect and sell. And, uh, I w I caution clients, um, and, and anybody listening out there who is on the internet and you fill out these forms and in order to get this information or this deal on something they want you to fill out, fill out the form. And the, so many companies are not there to provide that widget or that service that they’re saying they’re going to provide. They’re actually there just to collect data. They, that the service is
Speaker 1 36:00 secondary sale back to people who actually purchase this information,
Speaker 2 36:03 correct? Correct, correct. So, um, it, the, the service or the product or the widget or whatever is a secondary thing to them. So what they’re trying to do is just get you to fill out that form, um, and you know, so they can sell it. So as a business owner, you gotta be really, really cautious of it. Really, really super cautious.
Speaker 1 36:23 Um, what else? Um, which direction you want to go to?
Speaker 2 36:27 Well, I think that there are a number of, um, other employment related bills that, um, are signed by the governor this year. Um, under worker safety and occupational safety and public employment relations and stuff like that. Um, probably just say if, if you have a unique business or perhaps you’re operating in a unique space, um, and you know, public safety or something along those lines, you know, definitely go, um, go online and see if you find anything that is actually relating to you or reach out to an attorney. Um, somebody who you trust who is in the industry and can do the appropriate research to determine whether or not there is something new that’s happening in
Speaker 1 37:11 your industry. I do have a question. So for you, so, um, you know, the hourlies right, the, the, the hourly workers, um, and is it okay to have, uh, some verbiage in the time sheet for them to acknowledge, you know, because right now it’s our ward against it. The, you know, some type of statement that says, I hereby acknowledge that I have taken all of my bill, break it meal breaks and rest periods, um, on the penalty of perjury. Can actually somebody sign that, can an employee sign that because they’re, they’re actually, they’re filling that time. She say a paper time sheet that they turn over to HR or the payroll department can, can that be done?
Speaker 2 37:56 I suppose it could be done. What, what makes me, um, a little bit nervous is, are they being required to sign that in order to get their paycheck? Or does the employee, you believe, if I don’t sign this, I’m not going to get my paycheck. Um, so then you’re leveraging their paycheck. And in California you can’t withhold wages for any reason. Um, you know, I’ve, I’ve had employers say, Oh, you know, so-and-so employee damaged, um, you know, the vehicle or did something and they w
Speaker 1 38:22 fair, fair enough. But that’s not okay. So you’re, you’re attesting to your hours. There has to be some way to validate that. I was just saying, we don’t want anybody to come and says, well I didn’t work those hours. I actually had less hours or hours or
Speaker 2 38:36 how do you ensure that those, and they actually took their meal breaks, you saw them walking away and in the time sheet says that they didn’t. So what, so what we would recommend you do is have your employee fill out their time, time sheet and put on there what their lunch was, initial it and sign it. So if they’re filling it all out, you know, they’re, they’re filling out their time sheet and they’re signing it. That they, that they’re attesting that this is a true and accurate representation of their time. I’m very comfortable with that. Okay. So, and we can get into that a little bit more cause there’s some common mistakes employers are making after the break. We’ll be right back. Stay tuned.
Speaker 6 39:22 All right. We’re going to bring it home. It’s been a fun and exciting hour half happened at Claudine. It
Speaker 2 39:28 is, it is for, for me. Um, for other people, not so much. I, I have, um, I had opportunity to paint dry well, I’ve had opportunities to talk about labor code changes and violations with, you know, people in group settings and I F I, I think people get afraid and I feel bad for them cause they, you know, it’s just like you’re kidding me. One more new role. Um, and so, yeah, unfortunately. But the last subject that I really wanted to touch on, um, and part of it is just because this is big when it comes to employment, workplace harassment. Um, and it’s a, it’s a phrase that we’ve been hearing quite a lot in, in the media, which is quid pro quo. Yeah. What’s that all about? Yeah. Quid pro quo. If you haven’t picked it up from media yet, um, it’s a seven on that.
Speaker 2 40:15 A rock. That’s right. You ha you have been living under a rock. Um, but it’s something for something. Um, and that is really the most common type of, um, of harassment in the workplace. Um, and when it falls under the heading of sexual harassment and hostile work environment. Um, and quid pro harassment is a type of workplace and sexual harassment that occurs when a manager, director, supervisor requires a request that an employee exchanged sexual favors in return for promotions, career advancement advancements and other types of benefits. And that is that last phrase, other types of benefits. What does that mean? That that word can really mean a lot of things. It might be parking in the, in the front parking space by the door. It might be, you know, getting, um, to leave work five minutes early every day. You know, it might be getting whatever days off you want so that you can attend your, your kids.
Speaker 2 41:10 Um, you know, school functions. So a common examples of quid pro quo because people you know, start to think about and they go, well, well if I, if, if an employee asked me if they can do something and then I agreed to that is that, you know, does that constitute to quid pro quo quid pro quo because they’re asking for something and they’re getting it. And so they’re receiving a benefit. So the common quid pro quo harassment scenarios are withholding payer benefits such as vacation or sick time unless the employee agrees to accept the request. Um, penalizing employees by reducing their hours or responsibilities. And I know that some people may not see a reduction of responsibility as being a penalty, but it actually can be because there are people who are thriving in their workplace and they are building their careers and they don’t want to have responsibilities taken away from them.
Speaker 1 42:01 So you’re saying, I’m taking away responsibility but still leaving the same pay? Just the responsibility part.
Speaker 2 42:07 Yeah, absolutely. So if, if there was an employee so far, for example, who had gotten to a place in their career where they were able to travel in, you know, conduct or host seminars and you’re saying, you know, I don’t think that you’re going to be going doing that anymore. And it’s something the employee really wanted to do as a benefit to their career. It’s helping them advance themselves and putting themselves out there in a public way. You take that away from him then that that can easily become a, a penalty.
Speaker 1 42:32 So it seems counter intuitive. Like, you know what, I, you’re highly compensated in, I hate for you to be traveling that much and I don’t want you to go do that anymore. Not knowing that that was a benefit for the employee, that they wanted to better their career. So cause it can not be done just, you know, simply, um, innocently. Right, right, right.
Speaker 2 42:50 And in this topic oftentimes kind of gets saturated with sexual harassment and there’s also harassment that is non-sexual, that, that goes along with it. And I think the sexual harassment is a lot easier to identify. Somebody is, you know, putting themselves forward. They’re making advances, they’re making crude jokes, they’re, they’re having inappropriate conversation. That’s oftentimes a lot easier to identify than just the harassment. And, and I’ve had a lot of people over the years come to me and say, Oh, you know, I want to Sue for harassment. And you know, I, my bosses said this and he says that, and he did this and he did that. And we really have to kind of sift through all of the stuff and say, is this a case of the boss or the manager just being a real jerk? Because there’s no law against being a jerk. We’re pretty close, but you can be a jerk and not necessarily be guilty of harassment.
Speaker 2 43:50 And harassment is really that kind of ongoing and persistent prevent PR prevailing, um, behavior. It’s just ongoing and persistent. Um, and so creating false negative performance reviews. I’ve, I’ve had that happen. I’ve had clients come in and say, Hey, I did really good in all my performance reviews were fantastic until I told the manager, no, I wouldn’t go out with them. And all of a sudden I’ve got a negative. That’s one of those things that’s going to be easy. I did have negative, yeah, it’s going to be a lot more easily identified because it’s in writing. Um, and so if it, if you are an employee and you feel like you’re in a situation where you’re being harassed at and doesn’t necessarily have to come from a superior, either, you can be harassed by coworkers. Now again, coworkers can be jerks. There are people who are childish, immature and they do do silly things.
Speaker 2 44:44 To what level is it rising, um, that it actually constitutes harassment. You know, the quid pro quo, I kind of bring that up because that’s kind of the obvious. If you are ever in that scenario where it’s an exchange at this for that, um, then, then you can feel pretty confident that you have a case that, um, is likely at least something that we, there’s some meat there that we could prove. Um, and so question, is an employer always responsible for harassment in the workplace? Is the employer? I don’t, I wouldn’t think so. Is it? Yup. Under California and federal law, an employer is automatically legally responsible for harassment by a supervisor that causes an employee to suffer any economic damage. So yes, the employer is always, and then, you know, along with that, um, the burden of proof. So when you have a quid pro quo scenario, uh, in most jurisdictions, the burden of proof lies with the employer, not the employee to prove it didn’t happen. Is it ever any different in the other States? Um, yes, California.
Speaker 1 45:49 Hello? This is a pro employee. State New York.
Speaker 2 45:52 Yes. Very. What about a state like Texas? I have no idea what the Texas law is. I would say that there’s a good chance and some of your more rural States that you’re not going to see this level of employee protection. I would just guess, but I don’t know. I don’t practice law there. And, um, because of social media and technology, we’re finding that things are becoming, um, a lot more level playing field. You know, people find out what’s happening over in California, employees are protected over there. Well why aren’t we protecting our employees
Speaker 1 46:29 in other States follow suit, you know, the big changes in the state of Oregon, you know, instead of Washington, you know, the West coast. Um, and uh, you know, California kind of leads the pack, uh, as far as the West coast in New York on the East. So I wouldn’t be surprised, you know, nearby or in States and with social media, everything is out there for everybody to see. Yeah. So in a lot of these things become news, you know, they make it through the courses, them and there is ubiquitous, you know, everywhere. CNN is everywhere. Fox news is everywhere. Um, so just the moral of the story is in, as we said at the beginning, a behooves you as a business owner to know what’s going on now that you have to um, do everything yourself. No, you, I would suggest that you get, you got to have a good tax accountant, somebody, a good business advisor and a good lawyer and attorney at your corner because that’s your dream team as a business owner. Don’t try to be, do what you do best and let other individuals that, you know, you should have a board of advisors comprised of people who are there to watch your back.
Speaker 2 47:36 And, and you know, times have changed. We, we do onsite visits for our, our clients. And so we’ll come into your, your workplace and we will visit with your managers. We’ll build a relationship with your managers. We will spend the time doing that so that we can help them grow and develop. And, and, and if you are not policing your work environment, you are not doing yourself any service whatsoever. Just relying on, you know, other people to do it for you. Setting a standard of acceptable behavior. And, um, honestly it all starts with the leadership and the example leadership is taking. And I can’t tell you how many clients or businesses that we have gone into where we have seen the managers or even the owners are ones who use, um, kind of negative comedy, uh, picking on employers or you think you’re joshing with them dark humor or the office.
Speaker 2 48:38 Yeah. And, and if you are somebody who, who kind of partakes in that and, uh, you know, it’s a way of making a joke or perhaps it’s a way of, um, kind of calming, you know, nerves or you know, some people do that, they’re just a little nervous and so they start throwing jokes out there. Um, you really have to be the leader in your environment. And if you have any questions that I’ll reach out to somebody. I would say this day and age, if you don’t have advisors who are willing to come to your workplace and see your workplace, see what’s going on there. Um, bookkeepers that are not willing to come to the workplace and, and be their advisors like, like your Greenland that are, if they’re not willing to come to your place. Um, I might want to keep on looking,
Speaker 1 49:24 make a resolution for 2020 that to be surround you are, you know, as a, as Napoleon Hill said, that result, the five closest people you hang out. Yeah. If you hang out with great advisors, you’ll become better yourself. If you hang out with losers, you ended up being one. Yup. So, Hey, uh, that’s it for today. Hope you enjoy the show. We didn’t mean to scare you, but I think you should know this stuff cause you’re building a business or I have a great weekend everybody, we’ll talk to you next week. .
