Kate

Vaccination Mandates for Private Employers

On September 9, 2021, 5 days after COVID-19 related federal unemployment benefits ended, President Joe Biden announced new strategies to combat the pandemic. The announcement comes as the delta variant continues to surge and nearly eighty million Americans remain unvaccinated.
The upcoming federal vaccination mandate will take form of an Emergency Temporary Standard (“ETS”) from the Occupational Safety and Health Administration (“OSHA”). The ETS is expected to mandate that private businesses with 100 or more employees (“Covered Employers”) require their workforces to become fully vaccinated or test negative for COVID at least weekly. The ETS is also expected to mandate paid leave to enable employees to get vaccinated. Employers who do not comply with the mandate will face a hefty fine.
President Biden also announced vaccination mandates for all Federal employees without the alternative of weekly testing, and healthcare facilities that receive Medicare or Medicaid funding.
Various states, including South Carolina and Oklahoma, have already spoken out about the constitutionality of the mandate and as such legal challenges to the federal mandate are likely forthcoming. In the meantime, Covered Employers will be expected to comply with the mandate.
Impact on Covered Employers
Covered Employers who previously did not have a mandatory vaccination policy will now have to implement such a policy. While Covered Employers can seemingly provide an alternative to receiving a COVID-19 vaccine, weekly testing for unvaccinated employees may become expensive and burdensome as employers will likely have to pay for the test and then wait for test results, impacting business finances and operations.
As many employers know, the Equal Employment Opportunity Commission, the Department of Fair Employment and Housing, and most recently the Department of Justice, have all issued guidance allowing for a mandatory vaccination policy without an alternative testing requirement, though employers are still required to and should provide reasonable accommodation based on a qualified medical reason and/or sincerely held religious belief. Based on the EEOC, DFEH, and DOJ guidance, unless the OSHA emergency rule requires COVID-19 testing as an alternative, Covered Employers may consider a mandatory vaccination policy without such an alternative.
More information is forthcoming as we wait for OSHA to issue the vaccination mandate and requirements for the same. In the meantime, the attorneys at Bradley & Gmelich, LLP are standing by to provide advice and assistance regarding mandatory vaccination policies.
About the Authors:
Saba Zafar, Esq. is Special Counsel in Bradley & Gmelich LLP’s Employment Law Department. Saba has over a decade of experience as an attorney, primarily in employment law. Saba focuses her practice of providing strategic advice and counsel in all aspects of employment law and workplace matters, including drafting and implementation of HR policies and procedures, Employment Handbooks, providing advice to clients on personnel issues as well as general business matters.Prior to joining the firm, Saba was a Senior Counsel providing advice and counsel to mid-sized to large businesses on employment law compliance and day-to-day employment issues, including implementing policies and procedures, employee classifications, employment separations, managing and disciplining employees, and COVID-19 rules and regulations. Saba also handled a wide variety of employment matters in state and federal court, including cases involving wrongful termination, discrimination, and wage related cases.In her spare time, Saba has volunteered as a Mediator for the Department of Consumer Affairs and the Orange County Human Resources Department. She was also a Volunteer Tutor for Schools on Wheels, tutoring elementary school students on skid row in Los Angeles. Prior to practicing law, Saba was a Judicial Extern for California Court of Appeal, Second Appellate District.In her free time, Saba enjoys embarking on culinary adventures and catching up on new television shows. szafar@bglawyers.com

Jaimee K. Wellerstein, Esq. is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.

Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale-Hubbell, the highest peer rating available. jwellerstein@bglawyers.com

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Kate

Discount Expiring + ICYMI: Recalculation of Premium Pay

Early Bird Discount Ending Soon

The Early Bird Discount has been extended to Friday, September 10th.
Register now.

For only $39 you’ll gain access to the Virtual Vendor Hall, all conference sessions and Live Q&A sessions, Virtual Happy Hour hosted by the CALSAGA Ambassador Committee and more!

Not available during the days of the conference? No problem! Conference sessions will be available for two weeks following the event.

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As an association we strive to keep you up-to-date on relevant information for your business. In case you missed it in the latest edition of The Californian: The Quarterly Newsletter of CALSAGA please review the following important information below from CALSAGA Network Partner Bradley & Gmelich.

On July 15, 2021, the California Supreme Court held that if an employer fails to provide a legally compliant meal period or rest break to an employee, the wage premium owed to the employee must be paid at the employee’s “regular rate of compensation,” which includes not just hourly wages but all nondiscretionary payments for work performed by the employee. The Court also held that its decision will be retroactive.

The Case

Jessica Ferra worked as an hourly bartender for Loews Hollywood Hotel. She received hourly wages plus quarterly nondiscretionary incentive payments. If an hourly employee was not provided a compliant meal or rest break, Loews paid the employee an hour of pay at the employee’s base hourly rate. Loews argued this was the “regular rate of compensation” mandated by Labor Code section 226.7(c).

In 2015, Ferra filed a class action lawsuit, arguing that nondiscretionary incentive payments should be factored into the regular rate of compensation for purposes of meal and rest break premiums. The trial court and Court of Appeal agreed with Loews that the “regular rate of compensation” was not synonymous with the “regular rate of pay” used in Labor Code section 510(a) governing overtime. Ferra appealed to the Supreme Court, and the instant ruling followed.

The Supreme Court discussed the history and evolution of the wage orders as well as Labor Code section 226.7 extensively as the basis for its holding. The Court noted that neither the Labor Code nor Wage Order No. 5-2001 define the terms and the words could reasonably be construed to mean hourly wages or wages plus nondiscretionary payments as is the case under Labor Code section 510(a) for calculation over the regular rate of pay for purposes of overtime.

The Supreme Court also relied on the courts’ and DLSE’s understanding of two different terms, that “regular rate” under the Federal Labor Standards Act (“FLSA”) and “regular rate of pay” in Labor Code section 510 have the same meaning. “Regular rate” under the FLSA for purposes of overtime includes “all remuneration for employment paid to, or on behalf of the employee” including nondiscretionary payments. Thus using the word “compensation” in Labor Code section 226.7 as opposed to “pay” in Labor Code section 510 does not necessarily mean the terms have different meanings.

The Supreme Court also rejected several federal district court opinions holding that the regular rate of compensation only means an employee’s hourly rate. The Supreme Court observed that such an interpretation would put an employee who received only a piece rate or both a piece rate and an hourly rate of pay as compensation at a disadvantage as the nondiscretionary payments would not be counted towards calculating their premium pay.

Based on its analysis and legislative history, the Supreme Court held the phrase “regular rate of compensation” in section 226.7(c) has the same meaning as “regular rate of pay” in section 510(a) and encompasses not only hourly wages but all nondiscretionary payments for work performed by the employee.”

As the final blow to employers, the Supreme Court rejected Loew’s request to apply the decision prospectively. Thus, the decision will be applied retrospectively.

Employer Takeaway:

Employers should closely examine their policies and practices with regard to meal and rest periods. Employers must demonstrate constant vigilance in complying with California’s rigid wage and hour laws, including proper calculation and payment of the one-hour premium when violations do occur.

As the decision is retroactive, employers who have paid premium pay should analyze their calculations to ensure that it includes nondiscretionary pay.

If you have any questions about how this decision may impact your obligations, or need assistance with regards to calculating premium pay, please feel free to contact Bradley & Gmelich LLP. We are here to help.

About the authors:
Saba Zafar, Esq. is Special Counsel in Bradley & Gmelich LLP’s Employment Law Department. Saba has over a decade of experience as an attorney, primarily in employment law. Saba focuses her practice of providing strategic advice and counsel in all aspects of employment law and workplace matters, including drafting and implementation of HR policies and procedures, Employment Handbooks, providing advice to clients on personnel issues as well as general business matters.

Prior to joining the firm, Saba was a Senior Counsel providing advice and counsel to mid-sized to large businesses on employment law compliance and day-to-day employment issues, including implementing policies and procedures, employee classifications, employment separations, managing and disciplining employees, and COVID-19 rules and regulations. Saba also handled a wide variety of employment matters in state and federal court, including cases involving wrongful termination, discrimination, and wage related cases.

In her spare time, Saba has volunteered as a Mediator for the Department of Consumer Affairs and the Orange County Human Resources Department. She was also a Volunteer Tutor for Schools on Wheels, tutoring elementary school students on skid row in Los Angeles. Prior to practicing law, Saba was a Judicial Extern for California Court of Appeal, Second Appellate District.

In her free time, Saba enjoys embarking on culinary adventures and catching up on new television shows. szafar@bglawyers.com

Jaimee K. Wellerstein, Esq. is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas. 

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.

Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale-Hubbell, the highest peer rating available. jwellerstein@bglawyers.com.

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CALSAGA will continue to update you on matters that affect you and your business. We appreciate the hard work of you and your employees. Please let us know what we can do to assist you.

Stay in the know! Read the latest edition of The Californian: The Quarterly Newsletter of CALSAGA. You can also review all past editions of The Californian.

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Kate

The Californian 2021 Q3 – IMPROVING CONTRACT MANAGEMENT FOR BETTER BUSINESS STRATEGY

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IMPROVING CONTRACT MANAGEMENT FOR BETTER BUSINESS STRATEGY

Brandy Tomasek, TEAM Software, CALSAGA Network Partner

 

As a leader of a security company, managing your contract updates can become an incredibly daunting task, especially given today’s ever-changing environment. Not only are customers requesting more from your business in terms of the services you provide, but you’re also being required to monitor your service delivery to meet new and specific compliance standards. As contract management becomes more complicated, you’re simultaneously being asked to provide more visibility to your customers through business data and proof of service — a process multiplied by each dispersed job site spelled out in your contract agreements. 

As contract management evolves, one thing is clear. Your business strategy needs to evolve as well, namely in finding a way to leverage your technology so it’s working for you, not against you. Managing a contract across multiple platforms — or worse, through only paper-and-pencil processes — is tricky, messy and ultimately a drain on your resources. Even with regular communication to and from the field, you’re more likely to end up with answers that don’t line up across systems, discrepancies in how information is processed and assigned, and a loss of customer business. It’s important to use technology specifically designed for the needs of the security industry to counteract these dangers and better manage your contracts. 

Trainings, Licensures and Breaks

With your contracts, it’s important to make sure you have officers with the correct qualifications fulfilling the requirements of any given job, and that you’re providing fair and equitable hours whenever possible. Employees need to be onboarded thoroughly and appropriately with ongoing training and licensure requirements accurately tracked, so when a job does require specific certifications, you can fill those service-level agreement needs appropriately. When your officers are on duty, a holistic workforce management solution can monitor time worked against necessary compliance regulations, ensuring you accurately track time, including meal or rest breaks. This is especially important for instances when meal or rest breaks could theoretically be attributed to a different week due to how shift schedules fall, mistakenly resulting in more overtime expenses on your payroll. Without a software solution working to provide accurately, timely data to produce outputs, you’re relying on human subjectivity to manage minute details where error can result in headaches and liabilities for your company to handle down the road.  

Scheduling and Your Bottom Line

As a service contractor, labor costs are one of the biggest expenses narrowing your profit margins. Seemingly harmless scheduling gaffes, like an officer coming in early or staying late, can quickly add up in expenses your company is on the hook for but that you ultimately can’t bill to your customer. By eliminating manual processes from the scheduling equation, you can more accurately manage shift punches and rule out any de minimis time by setting up configurable default time and attendance settings. From a contract standpoint, this helps with cost attribution, while minimizing any back-office reconciliation work before payroll is due. Plus, a tool that monitors open posts, offers positions to employees and schedules based on compliance requirements (guard licensing, driver’s license, weapons permit, CPR training, etc.) ensures you’re still able to identify gaps in coverage, prevent pre-scheduled overtime and receive notifications if an officer doesn’t clock in for a shift. 

Communicating to Field-Based Officers

Manual back-and-forth communications can get the job done, but a software solution that provides communication to and from the field helps provide visibility to your security officers, supervisors and management. System notifications help identify things like gaps in coverage for contracts and better manage compliance requirements via messaging solutions. Plus, the ability to notify employees of open posts via push notification and SMS texting helps shorten the lead time of filling gaps in coverage and ensuring contract management. By tracking all communications within one system, executives have peace of mind — and a paper trail to refer to when reviewing contract fulfillment or queries from customers. 

The possibilities of software built specifically for the needs of the security industry are endless. Take advantage of tools that work for you to help manage your contracts. 

 

Brandy Tomasek joined TEAM Software in 2016. She’s a part of the Professional Services team, working as a Sr. Business Consultant. Prior to joining TEAM, Brandy earned a Bachelor’s degree in Management and Marketing, as well as her MBA in Organizational Leadership. Brandy’s professional experience spans a range of disciplines from management and leadership, to training and accounting. In her free time, Brandy enjoys spending time with her family, training their puppy and DIY everything.

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