Most employers are trying to do right by their workers and offer decent wages and benefits. But offering health coverage can be costly. The Affordable Care Act is changing that by reducing the cost for small businesses.

Employers with fewer than 25 full-time equivalent workers may qualify for a small business tax credit of up to 35 percent of premium costs (up to 25 percent for non-profits) to offset the cost of providing health coverage. Additional tax credits will be available in the future.

And starting in 2014, businesses with 100 or fewer employees will be able to find coverage in Affordable Insurance Exchanges.

CHECK OUT The Top 5 Things Small Business Owners Should Know About the Affordable Care Act for more information.
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AuthorLaw Offices of Hasti Daneshvar
On November 25, 2009, the Department of Labor Standards and Enforcement (DLSE) issued an Opinion Letter clarifying how and when a California employer may deduct for a full and partial day absence from an exempt salaried employee’s accrued paid time off (vacation and sick leave bank). Pursuant to California law, an exempt employee must receive his or her full salary for any week in which the employee performs any work without regard to the number of days, or hours worked. DLSE Manual § 51.6.8-51.6.9 and 29 CFR §541.602(a). Thus, under California law, it is illegal to dock the pay of an exempt employee for a partial day absence. However, under both federal and California law, the employer is permitted to dock the pay of an exempt salaried employee when the employee is absent from work for one or more full days for personal reasons other than sickness, or disability (29 CFR § 541.602(b)(1); DLSE Manual §51.6,14,3.) and for absences of one or more full days caused by sickness, or disability (including work-related accidents), if the deduction is made from a bona fide plan, practice, or policy of providing compensation for such sickness or disability (29 CFR § 541.602(b)(2); DLSE Manual § 51.6.15.2.)

California employers may deduct time for a partial day absence from an exempt employee’s accrued paid time off, if the Company's vacation policy requires its employees use their vacation hours for illness when the employee does not have any more accrued sick days. According to the DSLE Opinion Letter, while a partial day absence cannot be deducted from an exempt employee’s salary, such an absence may be deducted from accrued paid time off, accrued vacation time, or fringe benefits without affecting the employee’s status as a salaried exempt from overtime employee.

Please note that an employer is prohibited from docking a salaried exempt employee’s pay for a partial day absence even if the employee has no accrued leave, and doing so may lead either the court or the Labor Commissioner to conclude that the employee is not exempt from overtime.

Here's a summary to help you out...

-Employees exempt from the overtime requirements of California law under the Professional, Administrative or Executive exemptions must be paid a salary. This means the employee must receive the same amount of pay regardless of the number of hours worked each week.
-If an otherwise exempt employee performs no work during a full workweek, the employer does not have to pay the employee any salary.
-If the employee does not get sick days, you cannot deduct anything from the salary if the employee takes a sick day.
-If an otherwise exempt salaried employee absents himself or herself for a full day or more on personal business, such absence may be deducted on a pro rata basis from the salary owed.
-If an exempt employee performs any work during the work day, no deduction may be made from the salary of the employee as a result of what would otherwise be a “partial day absence.”
-If the employer has a PTO policy (as opposed to a sick leave policy), and the exempt employee exhausts the PTO, the employer can deduct the salary for partial day absences as long as the absence is at least four hours.
-No deduction may be made from the salary of an exempt employee for absences occasioned by sickness or accident unless the absence for sickness or accident exceeds the weekly period.
-Deductions may be made for absences in increments of full working day occasioned by sickness or disability (including industrial accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing full compensation for loss of salary occasioned by both sickness and disability and the employee has exhausted his or her leave under the policy. In other words, an employer cannot deduct for sick days unless it first gives the employee some sick days to exhaust and the employee in fact exhausts those sick days.
-No Deduction From The Employee’s Salary May Be Made For Absences Occasioned By The Employer Or By The Operating Requirements Of The Business if the absence is less than a week. (i.e., if the employer shuts down the office for two days). If the employee is ready, willing and able to work, deductions may not be made for the time when work is not available. If the office closure is a full week, the employer does not have to pay employees for that week.

You can also read the Opinion letter here.

As always, please call Daneshvar Law at (323) 850-5801 or email us at info@DaneshvarLaw.com to help you comply with current labor and employment laws.
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AuthorLaw Offices of Hasti Daneshvar
Ring in the new year with an updated handbook because there are a plethora of new employment laws which have been passed. Daneshvar Law is offering special rates to businesses in need of handbooks. You can contact us at (323) 850-5801 for more information.

Here's a quick summary of what's changed.

S.B. 459 imposes a fine -- from $5000 to $25,000 -- on employers that "willfully" misclassify someone as an independent contractor.

S.B. 299 requires employers with five or more employees to maintain group health coverage for employees on a pregnancy disability leave (PDL), for the four-month duration of the PDL. This new law will have an impact for all employers. For employers with 50 or more employees, the requirement to maintain health benefits was capped at 12 weeks during a pregnancy leave covered by the FMLA. And, smaller employers had no obligation to maintain health coverage during a PDL.

A.B. 22 prohibits employers, excluding financial institutions, from obtaining consumer credit reports on applicants or employees, except in limited circumstances. The law does not bar employers from conducting criminal background checks or checking references, or from doing credit checks where required by law.

A.B. 240 permits employees, in proceedings before the Labor Commissioner for underpayment of minimum wages, to recover liquidated damages of twice the amount of wages that were unpaid, plus interest. Previously, employees could recover liquidated damages only in court actions.

A.B. 592 adds new language to the California Family Rights Act (CFRA) specifying that it is an unlawful employment practice "to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under" the CFRA.

A.B. 887 revises the Fair Employment and Housing Act (FEHA) to include gender, gender identity, and gender expression in the list of protected characteristics (along with race, sex, age, disability, etc.). Gender expression is defined as a "person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth."

A.B. 1236 prohibits the state, counties, or cities from requiring private employers to use the federal government's E-Verify system. Note that, for most employers, the use of E-Verify is voluntary.

A.B. 1396, which takes effect January 2013, imposes substantial new obligations on employers that pay employees on commission.

S.B. 272 clarifies the organ/bone marrow donor paid leave law that took effect on January 1, 2011. The law now specifies that the paid leave periods under the existing law (30 days for organ donors and five days for bone marrow donors) are measured in business days and that employers must maintain an employee's health benefits during the leave.

S.B. 559 expands the FEHA and Unruh Civil Rights Act to prohibit discrimination on the basis of genetic information, similar to federal GINA (the Genetic Information Nondiscrimination Act). Note that existing California law already barred employers from subjecting applicants or employees to genetic testing or from discriminating based on genetic characteristics.

In addition to the above California law changes, there may be additional Federal actions which will be announced at the beginning of the year. Also still to be decided this year is the Brinker decision affecting Meal and Rest Periods.
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AuthorLaw Offices of Hasti Daneshvar
A bill sponsored by the Transgender Law Center and Equality California was signed into law by Gov. Jerry Brown. The bill, Vital Statistics Modernization Act, simplifies changing ones birth certificate for transgender Californians. Another bill, the Gender Nondiscrimination Act, was also signed by the governor and it provides further protection from discrimination for California residents who identify as transgender.

The Vital Statistics Modernization Act has been regarded as a key step to reducing the difficulty that transgender residents face with documents required by the state. The process for a person looking to change his or her gender on a birth certificate is streamlined. According to the only documents necessary to make the change is a note from a medical professional stating that the person has "undergone 'clinically appropriate treatment'". The Executive Director of the sponsor organization Transgender Law Center stated, "Having identity documents that match who we truly are is critical to our ability to work, travel and thrive." The difficulty to travel around the U.S. or internationally by plane is especially difficult for a person who has changed genders due to the scrutiny faced at security checkpoints.

The other bill changed the definitions under the law to bolster the protections against discrimination for transgender men and women. The Transgender Law Center said that these changes "provide[s] clarity to those who are victims of unlawful discrimination as well as for business owners, employers and other entities required to comply with the anti-discrimination protections..." Contact Daneshvar Law at (323)850-5801 if you believe that you have been discriminated against on the basis of your gender or sexual orientation.
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AuthorLaw Offices of Hasti Daneshvar
Employers may often not realize it, but inconsistency in small-business activities is obvious to employees and others working with the business. Human resources departments need to handle situations professionally with similar treatment for all employees to avoid discrimination under civil rights and other federal discrimination laws covering disabilities and age. A wrongful termination lawsuit and disparate treatment or disparate impact arguments are of concern any time a small business discharges an employee.

To avoid these lawsuits, employers should follow a specific procedure with documentation and a checklist to avoid discrimination complaints in their business.

Treating employees less favorably based on age, religious views, race, sex, disability or national origin is disparate treatment, a form of discrimination under the law in the United States. Actions leading to a wrongful termination lawsuit may give the courts a reason to find for the employee on disparate treatment discrimination. If an employer warns some of its employees before termination and do not warn others, the business shows vulnerability under disparate treatment and discrimination laws. Discrimination applies to race, sex, age, disability or religious beliefs, and Caucasians can allege discrimination and wrongful termination when the employer favors other races. Disparate treatment is the most frequent proof for discrimination claims, reports the Introlaw website.

Disparate Impact occurs when an employer fails to follow the same procedure for all employees, the employee may win a discrimination lawsuit without proving disparate treatment. Disparate impact relates to the hardship created by the discrimination and is often used in age discrimination lawsuits. Disparate impact relates to disparate treatment, and a wrongful termination lawsuit may claim that the impact or hardship created plays a role in the discrimination. A greater impact proven to a specific group such as women or older employees may impact the business as well.

To avoid Wrongful Termination Claims, an employer should do the following:

1. Review state laws on termination, including any payday laws applicable, so that it complies with all dates and rules.

2. It should develop office procedures and a checklist for termination of employees.

3. Use fair dealing with all employees, even if the state is an employment-at-will state.

4. Give notification of infractions and make a record in the personnel file. Have the employee acknowledge receipt of a copy of each notification with a signature and date.
Termination. Give the employee a warning before termination, and record the warning date and information. Have the employee sign documents acknowledging receipt of the warning. Provide the employee with the real reason for termination, based in fact. Do not use excuses trying to make it easy for you or the employee. Make a case for misconduct if it exists. Pay your employee as required by law and offer any help you can. If you intend to oppose an unemployment compensation claim, document the file with dates and actions to take after termination. You have limited time to respond to an unemployment benefits claim.
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AuthorLaw Offices of Hasti Daneshvar
Am I required to pay wages to employees who serve on jury duty?

You are not required to pay wages to non-exempt employees who serve on jury duty. Exempt employees must be paid full salary for any week in which they perform any work. There is a difference in that you must pay an exempt employee who works any part of a week and is on jury duty, versus a non-exempt employee who does not have to be paid. This is just another reason it is so important to properly classify your employees.

The California Labor Commissioner has stated in the Enforcement and Interpretations Manual that federal law, with respect to jury duty, is compatible with state law and will be followed. Any exempt employee who works any part of a week and who serves on jury duty must be paid salary for the full week. Both the U.S. Department of Labor and the state Labor Commissioner, however, will allow employers to offset any amounts received by an employee for jury fees for that particular week.

Exempt employees are subject to certain compensation requirements in order to retain the exempt status. Code of Federal Regulations Section 29 CFR 541.602 provides that an exempt employee must be paid on a salary basis to be considered an exempt employee. The general rule contained in paragraph (a) provides that if an exempt employee performs any work within a week, then that employee must be paid salary for the full week. Under paragraph (b), there are certain exceptions when the exempt employee is absent of his/her own volition. The exception does not apply to jury duty. Paragraph (b)(4) requires that exempt employees who work any part of a week be paid full salary for that week. If not, the exempt status will be lost. An exempt employee who misses a full week of work because of jury duty does not have to be paid salary for that week.

It's crucial that employers recognize that very seldom will an exempt employee perform absolutely no work in a week— even answering e-mail, listening to voicemail, reporting to the office outside of jury duty hours will all constitute work during the week.

Additionally , California Labor Code Section 230(a) provides that an employer may not discriminate against an employee for taking time off to serve as required by law in an inquest jury or trial jury, if the employee,prior to taking time off, gives reasonable notice to the employer that he/she is required to serve.Labor Code Section 230(a) does not require the payment of wages for non-exempt employees nor the payment of salary for exempt employees who miss work because of jury duty. Both classes of employees, however, are protected from being discriminated against.
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AuthorLaw Offices of Hasti Daneshvar
An employer can deduct funds for:

-union dues or tax withholdings;
-any losses caused by your dishonesty; willful misconduct or gross negligence; or
specific deductions that you previously gave written authorization to the employer to make.

In addition, wages could be deducted for food and lodging that, by pre-agreement, are part of the employee's salary. And, under certain conditions, an employer can offset minimum wage payments by providing you with food and lodging. An employer cannot, however, require the employee to pay for meals or housing through your job. And if the employee has to buy tools or a special uniform for his job, the employer usually has to reimburse him.

Finally, even if you the employee does owe money to the employer, he or she cannot deduct the debt from his final paycheck in one lump sum. Instead, the employer could sue the employee in small claims court or superior court for reimbursement.
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AuthorLaw Offices of Hasti Daneshvar