Harassment, California, Legislature discussed on HR in Hospitality
What is California Governor Newsom thinking now. Here's the deal folks when I originally put this podcast podcast together in this program. I didn't realize the governor would actually start signing bills into legislation the week that I was recording it so as as of the time of this recording on Saturday September twenty first some of these bills may have already been signed into law so keep that in mind and stay posted as we go throughout the next coming weeks and what the governor's going to deal with that in California the legislature introduced two thousand five hundred and seventy six legislative employment bills and this last year in two thousand nineteen so currently those bills several of those bills are sitting on the governor's desk waiting for signature and has reveal and he has until October thirteenth so just a little under four weeks here to either sign or veto those bills so as we go throughout the coming weeks ran and keep our eyes on that now sweeping legislation folks has gone approve this past week and that's known as a b five assembly bill five known as Dynamex we call this the ABC test in human resources and has to relate to contractor status and the appropriate classifications in which we classify employees you know whether we classify them as a salary hourly or contractor contractor this bill which has been signed into law effective. January first of two thousand twenty is going to impact several industries particularly the GIG economy. The GIG economy your ubers and lifts of the world so here's what five tells us. Ab Five basically Lee says that you have to pass a three prong test where a worker is either going to be considered an employee so a W. Two employee early or a contractor a ten ninety nine contractor so the ABC tests you have to pass all three tests so for example test a the worker is free from the control and direction of the hirer in connection with the performance of the work both under the contract for the performance of such work so they have to be completely free from control and direction in other words. The employer cannot control them at any time time or direct them example. You cannot tell them that they have to go on a meal break or they have to report to the company at a certain time. They have to use your equipment. There are lots of areas there which most if not majority of contractors would fail so that's the first one the first test the second test is be the worker performs work that is outside the usual course course of the hiring entities business so whatever the contractor is providing you it is outside the usual course of. Your Business and I think this is where the GIG economy is going to struggle to prove this part of the test such as Uber and Lyft. That's going to be a challenge and then see the worker is is customarily engaged in an independently established trade occupation or business of the same nature as the work performed for the hiring entity not so it's critical here that to pass this test and this is where again. I believe a majority of contractors are going to fail that this worker it is in their own trade so for example you can take myself as a human resources consultant who would not go and work for a hotel full time as their HR director and have to report their forty hours a week between the hours of eight and five and customarily engaged in the hotel business as an HR professional that would not work. I would have to be a w two or an employee so with that. There are exemptions to this fall under the Baruelo test. There's not enough time to describe or discuss what the Barilla's tests is is in this podcast but in some basically says that you know that the employees essentially or the contractor must work directly directly for the business and not for the customer so that is the big test there that if you WanNa hire me as a contractor I must work work directly with you the business not on behalf of the customer so again this is where Uber works on behalf of the customer and that is is where they might run into issues personally. I do not envy the in house counsel for Uber or left who is going going to obviously challenge. Ab Five in the coming months so there are several other exemptions that fall into the brill tests but again keep that in mind as as as we follow this legislation. How does this impact you the the hotel your the restaurant tour or hospitality industry. I don't predict it's going to impact you that much unless you contract out specific tasks such as maybe your marketing department or maybe you have someone who is managing your website. How do you pay them. Are you paying them. As a contractor is a ten ninety nine and are you able to pass the three pronged. ABC ABC test that is one area same with sales sales managers some smaller properties may contract out that service so again are they working directly with your customer because if they are you've already failed to ABC test and you must pay them as an employee so we'll keep that open here is January rolls around and this gets put into effect with the legislature here in California will keep our eyes and of course as we often see in California the state usually sets precedence for the rest of the country so don't be surprised if the federal government and Congress start looking at a b five as a foundation to future legislation all right so enough of the ABC test. Let's look at Ab one seventy. This has not as of today been signed by the governor. Ab One seventy says that this will make the employer automatically jointly liable all for the acts of a contract supervisor regarding harassment whether sexual harassment or other types of harassment such as bullying another words. This is joint liability. The employer and the offender could be jointly liable in that lawsuit showed lawsuit be triggered again this applies to all harassment not just sexual harassment and it doesn't matter if you the employer have direction control control or knowledge of the harassment you will still be liable or potentially jointly liable the idea here. Is that your contractors because you're contractors. Should they including vendors you know maybe it's your Pepsi Pepsi Vendor or a food wholesaler. WHO's coming in to deliver food to your restaurant if this individual harasses anyone whether it's one of your guests or employees they end you will be liable so keep your eyes on that most importantly make sure you're doing your the harassment training which we'll talk about here in embedded in a minute another bill that is hot on the governor's desk is s b one four two and Dan this has to deal with lactation in the workplace and this is based on the San Francisco Ordinance on that is directly adopted from the city of San San Francisco and has now been adopted statewide which is no surprise after all the California governor is the former mayor of San Francisco so with that the SBA one forty-two lactation in the workplace expands the law quite greatly compared to the current law that we have in place for lactation so what this tells us as that lactation lactation room must have several things first the lactation room has to be clean and free of toxic materials and chemicals calls to it must contain a surface to place a breast pump three there must be a place to sit and four. They must have access to electricity within this lactation room. All four of those must now be present. Should this be signed by the governor to there must be a a sink with running water and a refrigerator must be in close proximity with an that lactation room third heard a denial of lactation breaks is subject to Labor Code Two to six point seven which a lot of us know that has to deal with meal meal and rest period so if you do not if you deny if you deny lactation breaks to your employees this falls into the meal and rest penalty which is of course a one hour of straight time wages for denial additionally the employer must develop an implement a lactation accommodation policy so this is where I'm encouraging you the hospitality professional and your Human Resources and council and soul to develop a policy ahead of schedule before January to ensure that you have a lactation policy that outlines all of this and and it doesn't it does not matter the size of employer this applies to every employer threw out the state's regardless of size so that I bill SB one forty two very likely to become signed by the governor I predict this only because it's the right thing to do but also our governor being from San Francisco and have adopted this legislation straight out of San Francisco makes perfect sense in why he might sign it okay so here are a few other bills that I'd like to talk about that. The governor may or may not sign meaning based off of the legislature and what they did may you or may not happen but likely of course California being as liberal as the state is and very employee. Not Friendly are likely to possibly get signed. The first one is a b nine this extends the statue of Limitations for filing claims with the h the.