Episode 8: Labor Law Helpline: What’s Your Question?

Welcome to the Workplace, a podcast by Cal Chamber. I'm Alan Zarenberg, Kal Chamber President. With me today is Erica Frank, Kal Chamber's executive vice president of Legal affairs and General counsel. As some of our listeners may know, Kyle Chamber is the leading advocate for business employers at the State Capitol. But another important part of what we do is helping business stay compliant with our state's complex employment laws. One way we do this is through our Labor Law helpline, where expert HR advisors provide our members with a better understanding of labor laws, regulations, and court cases. The kinds of questions we receive on the helpline give us a good picture of the most challenging issues businesses are facing today. Today we're going to talk about some of those issues. Erica, what's hot on the helpline today?

Today what's hot on the helpline is sexual harassment training. Our phones have been bl up, so to speak. In all seriousness, a lot of our employers have a lot of questions about the new mandatory harassment training requirements and.

What kind of, you know, I see that last year we had an impressive 22,000 calls to our labor law helpline and we've already had 7,000 this year. What are they most concerned about? What laws are they trying to find out more about? And this tells us what they have to comply with, correct?

Correct. So there are a couple of laws and topics that we always get. A number of questions on meal and rest breaks that still confuses some employers isn't the easiest thing to follow and comply with the California paid sick leave rules. Those are often questions that we receive. Leaves of absence, how to handle all the different leaves, which leave applies to which employer? These are kind of our evergreen common questions that we receive on a daily basis.

So you mentioned sexual harassment. What kind of questions do you get about that? How to investigate, how to train people? What do employers need to know?

All of the above. The new harassment training requirement that went into effect this year that now requires employers with five or more employees to train their employees with one hour of training and their supervisors with two hour training is a huge change in the law. We are getting a lot of questions from employers wanting to know, do all the employees need to receive the training? How long does the training need to be? A very common question that we receive is do I have to not only pay for the training course? So if they are using an outside vendor or if they are training an attorney to come in and do the training, do they have to pay for the training itself and also pay the employee for the time the employee takes to do the training.

So let's be clear. Prior to 2019, only supervisors were mandated to take training, and those were only for employers with more than 50 employees. That's correct. Correct, yes. So now the law applies to everybody and every employee.

Pretty much everybody. Five or more employees, Any employee.

This is a huge. Do employers know this?

Well, we're realizing that through a lot of the questions that we're receiving, employers are starting to know more about it. They're starting to hear about it, but of course, the devil's always in the details. And there's a lot of questions about who can do the training, when does the training need to be completed? Those are the types of questions that we're receiving.

So do you get questions about if somebody has a complaint, what is an office manager, an HR person, what do they do to investigate? How do they do that?

The questions with regards to complaints and investigations usually come in with hr, or whomever is fulfilling that HR role, saying, I had an employee come to me today and complain about another employee either allegedly harassing them or being mean to them. Those are usually how the questions come in. What do we need to do now as employers, now that somebody has come forward with an issue?

How does your helpline advisors help people? What do they tell them to do? They tell them what the law is, and how do they help them out?

Sure. Our helpline advisors, we have former labor commissioners as our advisors. We have attorneys that are advisors. None of us can provide legal advice, but we can help our employers give them the information they need, help them understand what the legal requirements are with regards to the harassment. Our advisors are very aware of the statutory requirements and also the regulatory requirements. They can walk the employer through all of the steps and things that they need to do. We also have HR California, which is our compliance resource website that members who have access to the helpline also have access to HR California. HR California has quite a bit of information, and our advisors oftentimes direct them to the website to specific links so that they could read more about what they're asking about.

So one of the things you mentioned that you get questions about are family leave issues. And for the listeners to hear about this is. I was schooled on this by Erica and our lobbying team who work on employment law issues last week, and it took me about an hour to understand paid family leave, disability leave. Who does it apply to? Because we have some new rules this year, right?

Yes. So the new rules actually went into effect last year as far as new parent leave, baby bonding time for employers with 20 to 49 employees, that was something that was a game changer. It used to be that employers with 50 or more employees could have 12 weeks of baby bonding time. The legislature changed that so that employees working for smaller employers as defined by 20 to 49, would also have the 12 weeks of baby bonding time.

Okay, but. Okay, so somebody who does have a baby and has disability leave, that applies to virtually all employers though.

That's correct. If I have an employee who's pregnant, then California has pregnancy disability leave. And that applies to all employers and it applies to the employee the minute they begin working for the employer.

And on top of that, there's other leave provisions in California law. So what do you, how do you get. So what kind of questions you get about all these and how they all work together? Is that the most confusing part?

It is the most confusing part. Oftentimes what will happen is we will get a caller or a member asking about what to do. I have an employee that just told me that the employee is pregnant. So sometimes it's as open ended as I have a pregnant employee. What do I do at that point? The advisor will walk them through the pregnancy disability leave law requirements. During that conversation, the advisor will often and likely ask how many employees do you have? And based upon that answer, talk about baby bonding as well. So that that employer knows as the employee is finishing their pregnancy disability leave time, they may have additional time for baby bonding.

So previously when it applied to the baby bonding above 50 employees, a lot of those companies might have an HR person. But now if you have fewer than 50 and you're covered by with as few as 20, you need help to understand this. Right. Most companies that size don't have an HR person on staff.

That's absolutely correct. And one of the things that the chamber offers to members and non members, we do seminars throughout the year and throughout the state. And what I'm starting to see more, not just on the helpline, but even on seminars, as we start to get a smaller employer, we're having an individual who is the payroll person, the accountant for the company and hr. So we have somebody who's wearing multiple hats trying to now figure out what do I do in this situation. And that's where we really come in and help.

Oh, that's great. You mentioned a few other things like wage and hour issues.

And discrimination complaints. What kind of questions do you get on these?

Yeah. So wage and hour. Honestly, it could be as basic as what is California's minimum wage to as complex as I have an Employee that works variable rates works overtime one day, takes seven days to do their job. What do I do? How do I pay them? When we have variable rates, we get lots of questions about what does it mean to be an exempt employee in California? An exempt employee is somebody who.

Is not entitled to overtime in the most simplistic forms. But in order to be exempt, you have to have a minimum salary threshold of two times the state minimum wage and satisfy certain duty requirements. And that's where sometimes people don't realize that it's more than just saying you are a manager and now exempt. So the range of questions that we can get on wage and hour is extremely broad with discrimination. Oftentimes we will get a lot of questions around someone who might be disabled and how to accommodate that person, whether that means they have a modified work schedule or they need to be away from the office for a lengthy period of time, which sometimes can be months. We'll also receive questions oftentimes on religious accommodation employees that may not be able to work because it's a holy day and they need to honor it and not work. So what is the employer required to do in that circumstance? So there are so many questions that are out there for the California employer that it's quite challenging without having resources available.

So a lot of the smaller businesses have to staff up. Sometimes they have to accommodate people who may have disabilities or religious affiliations that require time off or just the complex wage and hour rules.

Absolutely, that's exactly right.

So how does an advisor help somebody I know, because we provide this to our members so they have access to HR California, which is the digital online compilation of all California labor laws and federal laws integrated. Do they use that to help them find the answer and be able to keep the answer?

Yes. Our advisors are all very well aware and familiar with the content that we have on HR California. And they do direct our members to certain pages of the website that are relevant to what their question might be. Sometimes we get calls, and I've had these before where someone just heard about California's mandatory sick leave law and know nothing about it. And oftentimes in those cases, it's. It's more helpful for the member to first read a little bit about it and then come back to the helpline with questions that they may have.

So in your seminars, you probably have some out of state people and they must be surprised having employees in California, how the laws are so different than the rest of the country.

Absolutely. The folks that we get and even on the helpline that are Calling from Texas, Georgia, Florida. They are oftentimes just amazed at how different California is. And quite frankly, because they know California is so different. They know to watch out for certain things or to check to see if some things may not be right. But in California, we have a daily overtime requirement under federal it's weekly. Someone from out of state may not know that and may only think that overtime is due if an employee works over 40 hours in a week. Not recognizing that in California, we have a daily and weekly overtime. So anything over eight hours in a day is going to trigger overtime. A couple other areas where we are a little bit different than out of state, our leave laws are different. Most states follow the federal Medical Leave Act. California has its own California Medical Leave act, which is different in a few circumstances than the federal version. We have the new Parent Leave act, which is for those smaller employers that we talked about. We have pregnancy disability leave. All of these are unusual and foreign to that.

And the mandatory sick leave.

The mandatory sick leave is really tricky in California because especially for someone who's working out of state, because there's other states now that have passed their own mandatory sick leave law. They're all different in different ways. They all have different nuances. In California, not only do we have the state mandate, we also have a number of localities that have passed their own sick leave ordinances. In many cases, these localities, their ordinances are more beneficial for the employees.

So oftentimes they are requiring more sick days than what California requires. So it really requires a mastery or at least a knowledge of, okay, California is kind of crazy. But also on top of that, we have to look at what some of these local communities are doing to make sure we're following both.

So I assume one of the challenges is just finding out about some of the law changes. So, for example, last year, the California Supreme Court created a new rule for determining who's an employee and who's an independent contractor. I think before you even get a question, people even have to know that happened, right?

Absolutely.

So are you able to help them out and do that?

Yes. It's interesting, particularly when you talk about court cases, because there's many that come out every year, and it's very difficult to find information about them. One of the things that we do at Cal Chamber through our seminars, our HR Watchdog blog, our newsletters, is we really pick those key cases, those key regulations, whatever it might be, and really make an effort to get the word out to our employers. So when the California Supreme Court decision came down, which is called the Dynamex Decision on Independent Contractors. We were right out there with a blog and an article to our employers letting them know if you have independent contractors. The game has changed.

So one of the ways everybody employers can find out about what these law changes are are to join us at the workplace and listen to our podcast and please comment, share and subscrib. Subscribe to Cow chambers podcast@cowchamber.com.