Marijuana in the workplace: Balancing competing obligations

How can you reconcile conflicting laws and keep your workplace both safe and compliant?

5 Critical Components Every Job Description Must Contain

A job description need not account for every task that might ever be done. Here are the most critical components of a good job description.

  • Heading information.This should include job title, pay grade or range, reporting relationship (by position, not individual), hours or shifts, and the likelihood of overtime or weekend work.
  • Summary objective of the job.List the general responsibilities and descriptions of key tasks and their purpose, relationships with customers, coworkers, and others, and the results expected of incumbent employees.
  • Qualifications.State the education, experience, training, and technical skills necessary for entry into this job.
  • Special demands.This should include any extraordinary conditions applicable to the job (for example, heavy lifting, exposure to temperature extremes, prolonged standing, or travel).
  • Job duties and responsibilities.Only two features of job responsibility are important: identifying tasks that comprise about 90 to 95 percent of the work done and listing tasks in order of the time consumed (or, sometimes, in order of importance).
    • The first task listed should be the most important or time-consuming one, and so on.
    • Employers can cover 90 to 95 percent or more of most tasks and responsibilities in a few statements.
    • It’s more important to list what must be performed and accomplished than how, if there is more than one way to do it. Being too specific on how to accomplish a duty could lead to ADA issues when an employee asks for an accommodation.

Bottom Line

Creating and maintaining job descriptions isn’t difficult. In fact, sometimes businesses use the development of job descriptions as a means of opening new lines of communication with employees. Employees want to be heard, and the development of job descriptions is a perfect opportunity to increase employee involvement.

If employers approach the process correctly, it can even be fun! The reward for management is a useful tool that helps guide many critical employment decisions and serves as an important consideration in the defense of administrative actions and lawsuits.

What Is an Employee Benefits Broker?

When you hear the word “broker,” what comes to mind? Insurance? Real estate? Brokers are typically people who have access to several options (in whatever their specialty is) and can help you narrow down your choices. Employee benefits brokers are exactly that: people who have access to (and information about) various employee benefit options who can help you narrow down your offerings by providing their input and expertise on the matter.

It’s important to note, however, that not all employee benefits brokers are the same. Some may work for one organization, such as a large health insurance provider, and therefore steer you only through choices from that provider. Others may not be tied to only one provider but may only specialize in one type of benefit. Still others may have a larger base of benefit options to consider but may or may not have as much depth of knowledge across all of the choices. There are a lot of things to consider.

What Can an Employee Benefits Broker Do?

When selecting an employee benefits broker, be sure to know which of these topics (below) are most important to you, and confirm that the broker you select can assist with those specific concerns. Not all brokers will perform every item on the list.

Here are some of the things an employee benefits broker may be able to provide to an employer:

  • Information and assistance in choosing various forms of insurance, including health, life, disability, dental, vision, and more. Note that not all brokers offer the full range of insurance options, but a large majority of benefits brokers specialize in insurance in some capacity.
  • Compliance information, helping the employer to ensure it stays compliant with the Affordable Care Act (ACA), the Employee Retirement Income Security Act (ERISA), and any other regulations that are relevant for the benefits on offer.
  • Advice on how to minimize total costs, such as how to reduce total premiums.
  • Assistance with employee communications related to benefit enrollment.
  • Contract review and negotiation (leverage) with the benefit providers to get a good deal. They may be able to create a customized insurance package for your organization.
  • Assistance in resolving problems. A broker may be able to act as a go-between for the employer to help resolve any problems with claims or administration of the benefits.
  • Analysis of your existing benefits and claims to provide advice on changes and potential cost savings.
  • Advice on changes to benefit packages based on your employee demographics, as well as analysis of previous utilization rates.
  • Direct assistance to employees who have benefit, coverage, or claims questions or need help with claims.
  • Education for employees about their options during open enrollment.

Remember, not all brokers provide all of the above services. It pays to ask in advance which of these items will be provided. The more services a broker provides, the greater he or she assists the organization and the employees. But there are also costs to consider.

Once you know what functions you’d like from an employee benefits broker, that’s not the end of the story. Here are some other considerations:

  • Any broker who is providing insurance will likely have to be licensed to provide this. Consider whether this individual will need licenses across multiple states to help serve your business or whether you may need multiple brokers who are licensed in different geographic areas. If you do, this may be solved by utilizing a firm with expertise across more than one location.
  • While some people may use the terms interchangeably, an employee benefits broker is not necessarily the same thing as an employee benefits consultant. Some would argue that an employee benefits consultant goes beyond what a broker does by providing even more in-depth consulting and decision-making assistance to the employer and the employees. A benefits consultant may be more likely to be able to assist with multiple types of benefits beyond just insurance. Consider which option you need. Note that fee structures may also differ for consultants versus brokers.
  • Brokers may work for or have contracts with specific insurers. The employer should ask what carriers the broker evaluates before making recommendations. It’s not necessarily a problem if the broker works with a specific insurer—it may mean you get greater discounts. But know what you’re getting and what trade-offs you’re making.
  • Brokers have fees, of course. These fees are typically bundled into the coverage provided. Ask about this up front and whether there are any additional fees. Some brokers instead operate on a flat fee based on your specific needs.
California Employment Law Update

The State of California has been very busy with employment law changes.  See below all of the laws that passed in May with various effective dates.

FEHA and National Origin Discrimination

On May 17, 2018, the California Office of Administrative Law approved the California Fair Employment and Housing Council’s new amendments to the state’s Fair Employment and Housing Act regarding national origin discrimination and employment. The new amendments:

  • Clarify the definitions of national origin and national origin groups.
  • Clarify permissible and prohibited types of employer policies governing English proficiency, accent, and language spoken in the workplace.
  • Clarify permissible and prohibited inquiries regarding immigration status.
  • Detail prohibited forms of harassment in the context of national origin.

The new amendments are effective July 1, 2018.

Read the law

San Francisco Paid Sick Leave Rules

On May 7, 2018, the San Francisco Office of Labor Standards published new rules reinterpreting the city’s Paid Sick Leave Ordinance (PSLO) with the following changes:

  • Setting the standard for coverage as applicable to employees working 56 hours in the city and removing a reference to working in the city “on an occasional basis.”
  • Joint employment terms are defined in relation to PSLO applicability.
  • Verification or documentation disclosure protections for employees are modified by requiring no more than is necessary for an employer to determine if the absence is lawful.
  • The notice requirements are modified to require what is presumptively reasonable for pre-scheduled or foreseeable absences.
  • An employee’s regular rate of pay is calculated according to state law (Cal. Labor Code § 510) where previously the calculation was undefined.
  • The basis of an employee’s exempt status is confirmed; however, the rule provides that if an exempt employee was not provided any other paid leave, and sick leave is taken, then his or her salary continues without deduction for the sick time taken, but the leave balance is reduced.
  • The waiting period requirement was modified for employees who are rehired within one year by permitting their original employment period to apply to its fulfillment.
  • Clarifications as to how the PSLO applies to a unionized workforce and collective-bargaining agreements.
  • Modification of remedy calculations and issue resolution timeframes for noncompliant employers.

The new rules are effective June 7, 2018.

Read the rules

Los Angeles Minimum Wage

The City of Los Angeles released its updated local minimum wage poster. Effective July 1, 2018, and under the city’s minimum wage ordinance, Los Angeles employees must be compensated as follows:

  • $12 per hour for employers with 25 or fewer employees.
  • $13.25 per hour for employers with 26 or more employees.

This notice also provides information about the city’s paid sick leave provisions and must be posted in a conspicuous place at any workplace or jobsite. Violators are subject to penalties.

See the poster

San Leandro Minimum Wage

Effective July 1, 2018, the City of San Leandro’s minimum wage increases to $13 per hour. The city released a new poster reflecting this new rate along with the other rate increases that take effect each July 1st through year 2020.

See the poster

Santa Monica Minimum Wage

The City of Santa Monica released its updated local minimum wage poster. Effective July 1, 2018, and under the city’s minimum wage ordinance, every Santa Monica employee (part time or full time) who works at least two hours in a particular work week within the geographic limits of the city must be paid no less than:

  • $12 per hour for employers with 25 or fewer employees.
  • $13.25 per hour for employers with 26 or more employees.

The city’s hotel worker living wage also increased, as listed in the poster, to $16.10 per hour effective July 1, 2018.

See the poster

San Francisco Minimum Wage

On July 1, 2018, the San Francisco minimum wage will increase to $15 per hour. The city released an updated minimum wage poster reflecting the 2018 rate, which must posted by San Francisco employers at each workplace or jobsite.

See the poster

Redwood City Minimum Wage

On April 10, 2018, Redwood City Mayor Ian Bain signed a city minimum wage ordinance (No. 2443) requiring Redwood City employers to pay the following minimum wages:

  • $13.50 per hour effective January 1, 2019.
  • $15 per hour effective January 1, 2020.

Under the ordinance, learner employees must be paid no less than 85 percent of the applicable minimum wage for the first 160 hours of employment and then must be paid the applicable minimum wage. Additionally, employers may not deduct any tip or gratuity (or credit any tip or gratuity) to offset an employee’s wages.

Beginning on January 1, 2021, and each year thereafter, the city’s minimum wage will increase by an amount corresponding to the prior year’s increase in the cost of living, if applicable. The cost of living increase will be measured by the percentage increase in the Consumer Price Index (CPI) for San Francisco-Oakland-San Jose. The increase will be calculated by using the August-to-August change in CPI; however, a decrease in the CPI will not result in a decrease in the minimum wage.

The ordinance also provides the following:

  • Posting requirements.
  • Retention of payroll records for three years.
  • Retaliation prohibition.
  • Exceptions.
  • Violations, enforcement, and penalties.

The ordinance became effective May 10, 2018.

Read the ordinance

Belmont Minimum Wage

The City of Belmont updated its minimum wage rate official notice to reflect the city’s minimum wage increase to $12.50 (tips not included) per hour for employers who are subject to the Belmont Business License Tax, or who maintain a facility in Belmont, and have an employee who works at least two hours per week in the city.

The rate is effective July 1, 2018.

See the notice

Pasadena Minimum Wage

The City of Pasadena updated its minimum wage rate official notice to reflect the city’s minimum wage increase to $13.25 (in addition to any tips received) per hour for employers with 26 or more employees.

The rate is effective July 1, 2018.

See the notice

Independent Contractors, IWC Wage Order Claims, and the ABC Test

On April 30, 2018, the California Supreme Court filed its decision in Dynamex Operations West, Inc. v. Superior Court regarding the proper classification of workers under the California Industrial Welfare Commission’s (IWC) wage order claims. As opposed to employees, independent contractors are not covered by IWC wage orders.

In Dynamex, the court held that there is a presumption that a worker is an employee, and covered under the IWC wage orders, unless a business (hiring entity) can establish that all of the following factors of the “ABC test” are applicable:

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. The worker performs work that is outside the usual course of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

If the business can establish that all parts (A, B, and C) of the test are met then the worker is an independent contractor for IWC wage order claim purposes. The court’s ruling in specifically applies to the analysis of the “suffer or permit to work” definition of “employ” contained in the wage orders when evaluating worker status. The court did not address which test is applicable to claims of misclassification under other California statutes, only to claims under the IWC wage orders.

The decision is effective as of April 30, 2018.

Read the decision

ICE Planning Surge of I-9 Audits This Summer

Derek Benner, acting executive associate director for ICE’s Homeland Security Investigations (HSI) told The Associated Press that in addition to the plans for this summer, the agency will continue to focus on criminal cases against employers and deporting employees who are in the country illegally.

ICE has already opened more worksite investigations seven months into fiscal year (FY) 2018 than the agency completed in all of FY 2017. The federal fiscal year runs from Oct. 1 to Sept. 30. Enforcement investigations in FY 2018 have doubled last year’s total, and arrests related to worksite enforcement have nearly quadrupled.

Since October 2017, HSI has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. That’s up from 1,716 investigations, 1,360 I-9 audits, 139 criminal arrests and 172 administrative arrests the previous fiscal year.

If anyone was wondering if the Trump administration was more bark than bite, these numbers indicate a significant increase in enforcement action, noted Muzaffar Chishti, an attorney and director of the Migration Policy Institute’s office at New York University School of Law. “What is not clear is whether any employers are included in the arrests,” he said. “Arrests—both criminal and civil—are almost always workers. For example, no one from management was charged in the high-profile Tennessee raid in April. That seems to be an imbalance.”

The ICE Toolkit

ICE said it uses a three-pronged approach to worksite enforcement:

  • Compliance, via Form I-9 audits, civil fines and debarment from federal contracts.
  • Enforcement, through the criminal arrests of employers and administrative arrests of unauthorized workers.
  • Outreach, by participating in the ICE Mutual Agreement between Government and Employers program, in which ICE certifies organizations for complying with the law. As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system.

Chishti believes pushing employers to enroll in E-Verify may be the aim of ICE’s more aggressive enforcement actions. “That strategy may work, but it only works for people who are on payroll,” he said.

E-Verify doesn’t enforce compliance for people paid as independent contractors, outsourced workers or those paid off the books, he said, adding that there’s a tendency for employers to explore these alternative hiring methods in response to increased enforcement.

Be Prepared for a New Normal.

Soon, ICE intends to conduct up to 15,000 Form I-9 audits per year, to be completed by electronically scanning documents in a not-yet-created national inspection center, Benner said.

“Investigations most often start with a notice of inspection alerting employers that ICE is going to audit their employment records for compliance with existing law,” said Michael H. Neifach, an attorney in the Washington, D.C., region office of Jackson Lewis. Enforcement actions can begin from a law enforcement tip or from an investigation into another type of violation, such as labor standards violations, and could result in civil penalties and/or criminal charges for employers.

ICE recently changed the way it calculates civil penalties to increase the fines imposed for I-9 violations. In FY 2017, employers were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.

“Unauthorized employees who are not legally in the U.S. may be detained and, ultimately, deported,” Neifach said. “Given the government’s focus on worksite inspections, preparing for possible inspections by auditing your employment verification processes and records is an essential precaution.”

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