How many times have you set a New Year’s resolution and a month or two into the New Year said to yourself, “oh well, maybe next year”?  We all too often set personal and professional goals each year, only to give up or put them on the back-burner once we get behind in reaching those goals.  The same can be said of workplace practices.  If you’re an employer in California, each New Year is accompanied by new laws impacting the workplace, most of which take effect each January 1.  But, when agencies begin each year worried about whether they are complying with new laws, they all too often stop prioritizing projects that address systemic issues facing the agency.  It is these systemic issues that are likely to have a more immediate and drastic impact on an agency if the agency is caught out of compliance.

As your agency begins to feel the impacts of policy changes arising from California’s newest laws, here are some reminders and recommendations about what can be done in 2020 to address systemic issues, as well as other policies your agency should consider implementing to make your agency an effective and welcoming environment:

Audits, Audits and More Audits

  • Independent Contractor Audits: Does your agency rely heavily on the use of independent contractors?  Are you a CalPERS agency and utilize the services of contractors who are CalPERS retirees?  Not only does California law place severe restrictions on who can be considered an independent contractor under the Labor and Government Codes, but the Public Employees’ Retirement Law (PERL) places other significant restrictions on CalPERS retirees providing services to agencies once they retire.  If these laws are not applied properly, not only could your agency be on the hook for substantial back-pay of employee benefits to those individuals it misclassified as independent  contractors, but CalPERS retirees may be personally liable for certain overpayments of pension benefits that they received from CalPERS while contracting with the agency. 
  • Policy and Regulation Audits: When was the last time your agency updated its employee handbook? Administrative procedures?  Personnel rules? For example, while your agency’s practices already recognize that the Fair Employment and Housing Act (FEHA) protects employees from discrimination and harassment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, do its written policies accurately reflect the scope of these protections provided under the FEHA?  Do they indicate that volunteers, interns and contractors are also protected from harassment based on these protected classifications? Do they explain that discrimination based on race includes discrimination because of traits historically associated with race, including, but not limited to, hair texture and styles, pursuant to amendments made to the FEHA in 2019, which go into effect on January 1, 2020?  Or, does your agency have a written disability accommodation policy?  The New Year is a good time to work with your legal counsel to audit your handbooks and administrative procedures/regulations to ensure they accurately reflect actual practices and the current state of the law.
  • FLSA Audits: On December 12, 2019, the U.S. Department of Labor (DOL) announced a Final Rule clarifying and amending federal regulations concerning regular rate of pay under the federal Fair Labor Standards Act (FLSA).  The amended regulations take effect on January 15, 2020, and address whether certain employee benefits are included in the regular rate of pay for overtime.  If you have not yet examined your agency’s practices in regard to these clarifications and amendments, you should immediately do so.  When working with your legal counsel to audit current practices, we also recommend an audit of other wage and hour practices.     

Recruitment, Retention and Succession Planning: As your agency begins to think about succession planning, are you realizing that your agency is having trouble recruiting highly qualified workers? Maybe your agency is located in a geographic area that is being hit by high rents and limited housing options?  Or maybe your agency is located in a more geographically isolated area of the State?  Consider adopting and implementing a remote work/telecommuting policy to draw talent to your agency.  Research shows that Millennials and Gen Zers, in particular, are drawn to workplaces that provide more flexibility in scheduling, resulting in better job satisfaction and higher retention rates.

Reconciling the Rise of Social Media in the Workplace, Free Speech and Expression, Employee Privacy, and Electronic Use Policies: As agencies begin to regularly utilize social media to communicate with constituents, invite public comment, recruit new hires, and announce new agency initiatives, the more at risk they become of violating individual’s privacy and free speech and expression rights.  For example, Labor Code section 980 prohibits employers from requesting or requiring an employee or applicant to disclose their personal social media account information, accessing their social media in front of the employer, or sharing personal social media.  Additionally, under the U.S. Supreme Court cases Connick v. Meyers, Pickering v. Board of Education and Garcetti v. Ceballos, public employers are limited in their ability to discipline of employees for their speech.  Finally, agencies or elected officials that create or utilize websites or social media platforms for public discussion or comment are thought to be limited by the First Amendment in what restrictions they can place such forums.  As technology and the world of social media evolve, so too do the courts’ interpretations of how far public agencies can go in terms of both employee oversight and regulation of speech.  Agencies should review their electronic use policies and practices to ensure that they are compliant with ever these evolving areas of the law.

As you come out of that food coma on January 1 or breathe a sigh of relief after having said goodbye to your relatives visiting from out of town, think not only about your personal and professional goals for the new year, but ways that you can help contribute to the success and health of your agency.

Wishing everyone a happy, healthy, successful, and meaningful New Year!

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Photo of Alysha Stein-Manes Alysha Stein-Manes

Alysha Stein-Manes provides representation and counsel to LCW clients in all matters pertaining to labor, employment, and education law.  Alysha primarily works as a litigator, representing public agencies and non-profit educational institutions at all levels of the litigation process in state and federal…

Alysha Stein-Manes provides representation and counsel to LCW clients in all matters pertaining to labor, employment, and education law.  Alysha primarily works as a litigator, representing public agencies and non-profit educational institutions at all levels of the litigation process in state and federal court and before administrative bodies.  Her litigation practice includes all aspects of discovery, motion practice, and trial preparation, including deposition preparation and appearances, drafting demurrers and motions for summary judgment, and preparing pretrial motions and witnesses for trial.  Alysha is developing expertise in the retirement and health arenas and regularly provides advice and counsel in the area of the Affordable Care Act, as well as retirement law for CalPERS, CalSTRS and ’37 Act agencies.  She also represents agencies in CalPERS appeals before the Office of Administrative Hearings.