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  • 19 Jan 2024 10:59 AM | Bill Brewer (Administrator)

    Hands using a laptop computer and superimposed icons signifying an online job search.

    January 3, 2024 by Sara Zaske, WSU News & Media Relations

    PULLMAN, Wash. – As more states require employers to list compensation on job ads, a trending strategy to use very wide pay ranges could potentially harm recruitment, according to a Washington State University study.

    The study, published in the Journal of Applied Psychology, found that participants in three different experiments were more likely to respond negatively to job ads with very wide pay ranges, viewing those employers as less trustworthy. Prior surveys have found that most people report they would trust organizations that include pay ranges in their postings more than those that do not, but as this study indicates, the way potential pay is presented also matters.

    “It’s not just a choice between including a pay range or not – how compensation information is communicated matters, and at least in this study, having a very wide range might send a negative signal to potential applicants,” said study author Kristine Kuhn, a WSU Carson College of Business researcher.

    How the ad explained the wide pay range also had an effect. In one of the experiments, participants were even less attracted to the organization if a very wide pay range included a statement that the offer amount would depend on the candidate’s qualifications. On the other hand, a more seemingly objective explanation that the offer would depend on the candidate’s geographic location tended to improve impressions of the employer.

    Historically, most job postings in the U.S. did not include numerical pay information, but in recent years several states, including Washington, California, Colorado and New York, have enacted transparency legislation requiring many recruiters to list pay ranges – in part because there is evidence it increases equity.

    Seeing an emerging trend in job postings with large pay ranges, Kuhn set up three experiments with different groups of participants to test the effect of this practice. In each experiment, some participants saw ads with wide salary ranges, such as a gap of $50,000 or more between the low and high point, while others saw ads with a narrower gap of around $10,000. The candidates then responded to questions about their perceptions of the organization posting the ad.

    Participants in the initial experiment were college students; the second experiment surveyed 350 college graduates using an online panel, and the third experiment involved 245 participants with recent job search experience. Across all three experiments, on average ads with larger pay ranges evoked less favorable impressions of the employers than the narrower ranges.

    In the last experiment which had an ad with a very large pay range of $58,100-$152,500, the participants provided written answers about how they viewed the employer. This revealed a high level of cynicism among some who called the wide pay range “dishonest,” “disingenuous” and “ludicrous.”

    As one participant put it: “The large range implies that they tend to devalue their employees. I doubt they would actually offer anyone applying for this position a salary at the top range, regardless of credentials.”

    There were some outliers, however, who viewed the large range as a positive, seeing the high top number as showing possible “room for growth without needing a promotion to another job.”

    Ideally, advertising a pay range should streamline the recruiting process, Kuhn said, so the recruiter and applicant on are on the same page. However, some organizations, especially smaller ones, may not have well-defined job structures, so the large pay ranges in job ads may indicate they want to tailor the position to the candidates who respond.

    “There probably is a goldilocks area of a just right pay range where it gives the employer some flexibility without sending negative signals to prospective applicants,” said Kuhn. “Also, while from a legal standpoint they may be required to advertise an expected pay range, employers and job candidates can still negotiate.”

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    Source: Washington State University

    https://news.wsu.edu/press-release/2024/01/03/job-ads-with-wide-pay-ranges-can-deter-applicants/

  • 19 Dec 2023 9:00 AM | Bill Brewer (Administrator)

    Date: 6 November 2023

    US Labor, Employment, and Workplace Safety Alert

    By: Saman RejaliGabriel M. HueyAlison HamerCarter L. NorfleetNeil A. EddingtonLauren E. ElvickSabrina Fani

    In the November edition of The Essentials, we outline key provisions of many of the new employment laws that will take effect in 2024.

    GENERALLY APPLICABLE NEW LAWS

    AB 1076 and SB 699: Sweeping Prohibition Against Employment-Related Noncompete Agreements

    The California legislature continues to expand its prohibition against noncompete agreements through California Assembly Bill (AB) 1076 and California Senate Bill (SB) 699, which broaden California’s already significant restrictions on noncompete agreements or clauses.  

    AB 1076

    Business and Professions Code Section 16600 voids noncompete agreements in California except in cases where narrow exceptions apply. AB 1076 amends Section 16600 to codify Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008), providing that the statutory provision is to be broadly construed to “void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored, that does not satisfy an exception in this chapter.” 

    AB 1076 additionally creates Section 16600.1, making it unlawful to include a noncompete that does not satisfy an exception in an employment contract. This section also requires employers to notify current employees and former employees who were employed after 1 January 2022 and who entered into noncompete agreements that fail to satisfy an exception under the section that the clauses are void. The notice must be in writing and delivered by 14 February 2024 to the employee’s last known physical and email addresses. Employers who are required to and fail to provide such notice commit a violation of the Unfair Competition Law under section 17200. 

    SB 699

    SB 699 creates a new section of the Business and Professions Code, 16600.5, which goes into effect on 1 January 2024 and substantially expands on Section 16600’s noncompete restriction in five key ways: 

    1. Noncompete agreements are unenforceable regardless of where they were signed or entered into, even if the prior employment occurred in another state and the contract was entered into outside of California.  
    2. Current or former employers are prohibited from attempting to enforce a noncompete agreement that is void under Section 16600, even where the agreement was signed and the employment took place outside of California.  
    3. Employers are prohibited from entering into a contract with a noncompete provision that does not satisfy an exception.
    4. Any employer who enters into or attempts to enforce a void noncompete agreement in California commits a civil violation.
    5. Current, former, and prospective employees can bring a private action seeking injunctive relief or actual damages for violations of Section 16600.5 and are entitled to recover attorneys’ fees and costs if they prevail. 

    The impact of SB 699 is extensive. The law purports to apply extraterritorially to hold unenforceable in California noncompete agreements that were validly entered into in other states. Under SB 699, if an employee and employer validly enter into a noncompete agreement in another state and the employee later obtains work in California in violation of that agreement, the employer cannot enforce the agreement. SB 699 is likely to face many challenges to its enforceability and its attempt to circumvent otherwise valid choice-of-law provisions. The statute, in its expansive scope, may also be inconsistent with the dormant commerce clause. 

    While the scope and enforceability of SB 699 will be litigated in the months and years to come, California employers should ensure compliance by carefully reviewing and updating employment agreements to remove noncompete clauses that may subject them to liability under the new laws. Employers outside of California should be mindful of these new laws before attempting to enforce noncompete agreements in California, even against employees whose previous work was in another state. Finally, employers should ensure that they comply with AB 1076 notice requirements by the 14 February 2024 date. 

    AB 636: Wage Theft Notice Amendments

    California’s Wage Theft Prevention Act, Labor Code Section 2810.5, requires employers to provide new hires a notice containing information regarding their employment, wages, and sick leave.  

    AB 636 expands the notice requirement to include information regarding any federal or state emergency or disaster declarations that may affect employees’ health and safety. In addition, the notice for employees admitted pursuant to the federal H-2A agricultural visa must include detailed information regarding their rights and protections under California law. Certain exceptions apply.

    The California Labor Commissioner will create a new notice template by 1 March 2024. Employers should work with their counsel to ensure their notices are legally compliant. Failure to provide legally compliant notices carries risk of Private Attorneys General Act (PAGA) penalties.

    SB 616: Expanded Paid Sick Leave Law

    California’s Healthy Workplace, Healthy Families Act of 2014 established statewide requirements relating to paid sick days and paid sick leave. Since that time, several cities have enacted their own local ordinances to provide employees with more than the state-mandated sick leave. Beginning 1 January 2024, SB 616 will expand California’s existing paid sick leave law in several ways, and will preempt local ordinances in certain respects, bringing more uniformity to the administration of sick leave in the state. Subject to limited exclusions:

    Frontload Amount Increase

    Employees are now entitled to five days or 40 hours of paid sick leave per year, up from three days or 24 hours, under the frontload method, and up to 10 days or 80 hours, up from six days or 48 hours, under the accrual method.

    Accrual Availability Increase

    Employers who use the accrual method must make three days or 24 hours of sick leave available to the employee by the 120th day of employment, and an additional two days or 16 hours available by the 200th calendar day of employment, for a total of five days or 40 hours.

    Accrual Method Carry Over Increase

    Employees under the accrual method may now carry over 10 days or 80 hours of accrued paid sick leave each year, rather than six days or 48 hours.

    Use Cap Increase

    Employees’ use of accrued paid sick leave may now be capped at 40 hours or five days’ paid sick leave, up from 24 hours or three days.

    The new law preempts local ordinances with respect to paying out unused paid sick days upon termination (not required under SB 616), lending employees sick days in advance of accrual, written notice of the amount of paid sick leave available, the rate of pay for sick days, notice of the need for sick leave, and the timing of pay for sick leave taken.  

    California employers should take steps to ensure compliance by 1 January 2024 by determining whether the new law preempts any local paid sick leave provisions, reviewing their current paid sick leave policies and employee handbooks, and revising any necessary accrual processes.  

    SB 700: Prohibition Against Inquiring About Prior Marijuana Use

    During the 2022 legislative session, the governor approved AB 2188, which prohibits most employers from discriminating or retaliating against applicants and employees for off-the-job cannabis use. SB 700 expands on AB 2188 by prohibiting employers from requesting information from an applicant about the applicant’s prior cannabis use or using related information obtained through a background check unless otherwise permitted by federal or state law.  


    AB 2188 and SB 700 both go into effect on 1 January 2024. California employers affected by AB 2188 and SB 700 should take steps to ensure compliance by (1) updating policies relating to drug testing, drug use, and background checks, (2) providing guidance to HR and recruiting, and (3) confirming with drug-testing vendors that they are using a test that can differentiate between THC, which indicates active impairment, and nonpsychoactive cannabis metabolite.

    SB 497: 90-Day Rebuttable Presumption of Retaliation

    SB 497 establishes a rebuttable presumption of retaliation if an employer takes an adverse action against an employee within 90 days of the employee engaging in certain protected activities, such as complaining about an equal pay violation or an employment practice that the employee reasonably believes is unlawful. Under California’s burden-shifting framework for retaliation claims, an employee bears the initial burden of establishing a prima-facie case of retaliation, which includes (1) engaging in a protected activity, (2) suffering from an adverse employment action, and (3) establishing a causal nexus between the protected activity and adverse employment action. Courts already consider the timing of the employer’s adverse action for purposes of evaluating whether the employee has established a causal nexus. The rebuttable presumption, however, makes it easier for employees to satisfy their initial burden when the adverse action occurs within 90 days of specified protected activities. Employers, however, can still defend against retaliation claims by articulating a legitimate, nonretaliatory reason for the employment action.  

    As part of their risk-mitigation strategy, employers should ensure their approach to performance management includes sufficient consideration of the timing of the proposed employment action and the employee’s protected activity, and should train managers accordingly.

    SB 497 also allows employees who suffer from retaliation in violation of Labor Code Section 1102.5 to recover the $10,000 civil penalty directly.

    SB 848 – Reproductive Loss Leave

    Effective 1 January 2024, SB 848 creates a new type of protected leave for California employees who have experienced a reproductive loss event. While existing California law provides for bereavement leave for the death of a family member, it does not address reproductive loss. A reproductive loss event is broadly defined as a miscarriage, stillbirth, failed adoption, failed surrogacy, or an unsuccessful assisted reproduction technology procedure. If a covered employee would have become a parent of a child born absent the reproductive loss event, the employee may take leave under this law.  

    Up to five days of reproductive loss leave may be taken following a reproductive loss event. If an employee experiences more than one reproductive loss event within 12 months, the employee may take up to 20 days’ reproductive loss leave within the 12-month period. Leave must be taken within three months of the loss or other leave the employee takes immediately following the loss, and it need not be taken in consecutive days.  

    If the employer does not have an existing leave policy that applies, reproductive loss leave may be unpaid, except the employee may use vacation, personal leave, sick leave, or compensatory time off otherwise available.

    Unlike when taking bereavement leave, employees do not need to provide documentation to support the need for reproductive loss leave. Employers are required to maintain confidentiality relating to any requests for reproductive loss leave.

    Retaliation for requesting or taking reproductive loss leave is prohibited.

    The law applies to private employers with five or more employees and public employers of any size; employees must have been employed for at least 30 days to be protected.

    California employers should review their existing employee handbook and policies, determine whether reproductive loss pay will be paid pursuant to any existing leave policies, and train human resources and management on how to handle this new leave law.

    California and Illinois are the first two states to grant reproductive loss leave for private employees, while several cities, including Boston, Pittsburgh, and Portland, have done the same for government employees. Other states will likely follow their example with similar legislation.  

    SB 553: Mandatory Workplace Violence-Prevention Programs

    SB 553, which amends Section 527.8 of the Code of Civil Procedure, aims to ensure workplace safety by imposing specific obligations on employers to implement a workplace violence-prevention plan. This legislation applies to all employers in the State of California, regardless of size or industry. Beginning on 1 July 2024, SB 553 requires employers to take specific measures to prevent and address incidents of workplace violence, including:

    Mandatory Workplace Violence-Prevention Plan

    Employers are now required to establish, implement, and maintain a workplace violence-prevention plan that assesses and mitigates the risk of violence at the workplace. This plan should be tailored to the specific circumstances of the employer’s operations and should identify the individuals responsible for implementing and maintaining the plan. 

    Employee Training

    Employers must provide workplace violence-prevention training to all employees. This training should cover potential risks, de-escalation techniques, reporting, and emergency response procedures, among other required topics.

    Incident Reporting and Response

    The bill requires employers to establish procedures for employees to report incidents or threats of violence and prohibits retaliation against employees for making such reports. Employers are obligated to respond to workplace violence concerns in a timely manner.

    Support for Victims

    The legislation encourages employers to offer support to employees who have experienced workplace violence, which may include providing access to counseling or resources.

    Recordkeeping

    Employers must maintain records related to workplace violence incidents, prevention plans, and training programs to ensure compliance with the bill’s requirements.

    Employers who fail to comply with SB 553 can be subject to a citations and civil penalties by the Division of Occupational Safety and Health. Employers should ensure that their workplace violence-prevention plan is up to date, regularly reviewed, and effectively communicated to all employees. It is essential to monitor the implementation of these new obligations and provide the necessary resources to support a safe and violence-free work environment. California employers are encouraged to seek legal counsel and workplace safety experts to assist in the development and implementation of their workplace violence-prevention plans to ensure compliance with SB 553. 

    SB 428: Harassment Restraining Orders 

    An employer’s ability to seek a restraining order on behalf of employees (including independent contractors and volunteers at the employer’s worksite) is governed by Code of Civil Procedure section 527.8. Existing law authorizes employers to seek a restraining order under limited circumstances: if there is a credible threat of violence against an employee or the employee has already suffered from a violent act.

    Effective 1 January 2025, SB 428 amends Code of Civil Procedure section 527.8 by authorizing employers to seek a restraining order on behalf of an employee suffering from “harassment,” which is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” The conduct must have subjectively and objectively caused the employee to suffer from substantial emotional distress but need not constitute violence or a credible threat of violence.

    Additionally, the standard differs from that under the Fair Employment and Housing Act (FEHA), California’s primary employment-related antidiscrimination, harassment, and retaliation statute. Employers can seek a restraining order even if the harassment is not tied to a category protected by the FEHA (e.g., sex, race, age, etc.) and does not meet the “severe or pervasive” standard. SB 428 also protects the identity of affected employee(s) by requiring employers to provide them with an opportunity to decline to be named in the petition for restraining order before filing it on their behalf.

    AB 594: State Prosecution for Labor Code Violations 

    AB 594 empowers city, district, and county attorneys to prosecute civil and criminal violations of the California Labor Code through 1 January 2029. The bill also provides that any individual agreement requiring a worker to arbitrate disputes with their employer, or that otherwise restricts representative actions, shall have no effect on the prosecutor’s authority to enforce the Labor Code. Money recovered in such actions will be distributed first to workers who are due payment, and any civil penalties would be paid to the state’s general fund. 

    The practical effect of this law is uncertain. California employers can already be held criminally liable for Labor Code violations, but criminal prosecutions against employers are rare. Moreover, it remains to be seen, given the myriad ways in which employers may already be prosecuted for unlawful wage-and-hour conduct (i.e., civil litigation, Labor & Workforce Development Agency investigations, Department of Labor prosecutions, PAGA lawsuits, etc.) how much time and resources public lawyers can and will divert from the prosecution of the criminal matters they already oversee. The arbitration provision in AB 594 will also likely be challenged on Federal Arbitration Act preemption grounds.

    SB 365: Revocation of Automatic Stay Pending Appeal of Order Denying Motion to Compel Arbitration

    SB 365 provides that, notwithstanding the general rule to stay proceedings pending an appeal, trial court proceedings will not be automatically stayed pending the appeal of an order dismissing or denying a motion to compel arbitration. 

    SB 365 arrives at a peculiar time, given that the United States Supreme Court recently issued a contradictory ruling in Coinbase v. Bielski. There, the United States Supreme Court held that appeals under Section 16 of the Federal Arbitration Act (FAA) appealing an order denying arbitration automatically stay district court proceedings. SB 365 will likely be challenged as preempted by the FAA. While the FAA does not prohibit states from creating rules governing the procedure of arbitration in their state, SB 365 could still be viewed as having a chilling effect on arbitration. Until there is further clarity on the validity of SB 365, employers should review their arbitration agreements for language expressly invoking the FAA’s procedural rules, as arbitration agreements that are governed by the California Arbitration Act will be subject to SB 365.

    INDUSTRY-SPECIFIC NEW LAWS

    AB 1228: Fast Food Act Update 

    In 2022, Governor Gavin Newsom signed AB 257 into law. AB 257 created a Fast Food Council within the Department of Industrial Relations. The council was provided with broad authority to impose sector-wide minimum standards on wages, working hours, and other work-related conditions concerning health, safety, and the overall welfare of fast food workers. Different industry groups in California opposed AB 257 and qualified to have AB 257 included in the 2024 ballot via referendum, which halted the enactment of AB 257. 

    Fast forward a year: California and industry groups were able to come to an alternative agreement regarding regulation in the fast food industry. AB 1228 was devised after a series of industry group meetings facilitated by Governor Newsom and goes into effect starting in 2024. The key provisions of AB 1228:

    • Establish a minimum wage of $20 per hour for most fast food employees effective 1 April 2024;
    • Authorize the Fast Food Council to establish annual increases to the minimum wage for fast food employees through the end of 2029; 
    • Prohibit fast food restaurants from discriminating or retaliating against employees who participate in a proceeding before the Fast Food Council; and
    • Place limitations on the Fast Food Council’s broad authority by precluding it from creating new paid time off benefits and regulations regarding predictable scheduling, and by requiring standards, results, and regulations developed by the Fast Food Council to go through the rulemaking process set forth in the Administrative Procedure Act. 

    AB 1228 will have far-reaching implications for California’s fast food industry employers. The statewide minimum wage is set to increase to $16, which is $4 less than the $20 fast food minimum wage. Employers outside of the fast food industry may find it difficult to retain minimum-wage workers who will earn 25% more if they work for a fast food employer. Employers looking to compete for and retain minimum-wage employees by raising their hourly pay above the statewide minimum wage will face increased operational costs.

    SB 525: US$25 per Hour Minimum Wage for Covered Health Care Workers

    SB 525 establishes a statewide US$25 minimum wage for covered health care employees, including physicians, nurses, and even some janitors and laundry workers. The health care worker minimum wage will replace the current state minimum wage of US$15.50 per hour. The pay increase to US$25 per hour is incremental and depends on the nature of the employer. For example, the minimum wage will increase to US$25 per hour in 2026 for larger health facilities, whereas it will increase to US$25 per hour in 2028 for licensed skilled nursing facilities. SB 525 also mandates that exempt, salaried employees must be paid no less than 150% of the health care worker minimum wage. The bill does not affect health care employees who are outside salespersons. Notably, SB 525 prohibits any ordinance, regulation, or administrative action related to wages or compensation for covered health care employees. Employers in the health care sector, such as hospitals, clinics, and urgent care centers, should consult counsel to determine when, and at what rate, the minimum wage increases for its covered employees. 

    SB 723: COVID-19 Right of Recall Extended for Covered Hospitality and Business Services Employees

    California Labor Code Section 2810.8 requires covered employers in the hospitality and business services industry (including, but not limited to, hotels, event centers, and employers that provide maintenance services) to make written job offers for positions that become available to qualified employees who (1) worked for the employer for six months or more in the 12 months preceding 1 January 2020 and (2) were laid off “due to a reason related to the COVID-19 pandemic.” Such employers are also prohibited from retaliating or taking adverse action against a laid-off employee for seeking to enforce their rights under these provisions. Section 2810.8 was originally set to expire on 31 December 2024. 

    SB 723 broadens the pool of covered employees to whom employers must offer recall rights. Covered employees are redefined as (1) any employee who was employed by the employer for six months or more, (2) whose most recent separation from active employment by the employer occurred on or after 4 March 2020, and (3) whose separation was due to a reason related to the COVID-19 pandemic.  

    SB 723 creates a presumption that a separation due to a lack of business, reduction in force, or other economic, nondisciplinary reason is related to the COVID-19 pandemic unless the employer establishes otherwise by a preponderance of the evidence. Additionally, SB 723 extends the 31 December 2024 repeal date to 31 December 2025.  

    Covered hospitality and business services employers should keep careful records of any laid-off employees to ensure that they are able to properly identify any employees entitled to recall as they open new positions.

    AB 647: Expanded Protections for Grocery Workers

    Under existing law, an incumbent grocery employer that transfers a qualifying large retail store to another grocery employer is required to provide the successor with a preferential hiring list of eligible workers within 15 days after the change in control document (e.g., purchase agreement) is executed, and the successor is required to hire from that list for up to 90 days after the store opens and retain them for at least 90 days unless the successor has cause to discharge the worker. Grocery employers are not required to comply for transfers of retail stores that have ceased operations for at least six months.

    AB 647 amends existing Labor Code sections and adds new ones that expand protections afforded to grocery workers in eight key ways:

    • Requiring grocery employers to comply with preferential hiring rules when transferring qualifying distribution centers;
    • Narrowing the exclusion to retail stores that have ceased operations for at least 12 months;
    • Expanding the required information in the preferential hiring list to include known cellphone and email addresses for each eligible worker;
    • Requiring incumbent grocery employers to provide the preferential hiring list to collective bargaining representatives, if any, and authorizing the successor to obtain the information from the collective bargaining representative;
    • Prohibiting employers from retaliating against an employee for attempting to enforce these rights or opposing prohibited practices;
    • Requiring any collective bargaining agreement superseding these requirements to clearly and unambiguously state that these protections are superseded by the collective bargaining agreement;
    • Providing employees with a private right of action to enforce these rights and permitting prevailing employees to obtain injunctive relief (hiring or reinstatement) and recover civil penalties, compensatory damages, punitive damages, attorneys’ fees, and costs; and
    • Authorizing the labor commissioner to issue citations and recover on behalf of employees.

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    Source: K&L Gates

    https://www.klgates.com/The-EssentialsCalifornia-Employment-Law-Update-For-2024-11-6-2023  

  • 20 Oct 2023 11:59 AM | Bill Brewer (Administrator)

    By Rick Reyes, Joy C. Rosenquist, and Adam Fiss © Littler

    October 13, 2023

    On Oct. 11, California Gov. Gavin Newsom signed a bill into law allowing for up to five days of time off work for reproductive-related losses.

    Senate Bill 848 makes it an unlawful employment practice for an employer to refuse to grant an eligible employee's request to take up to five days of unpaid leave following a reproductive loss event.

    Previously, California law required employers to provide bereavement leave upon the death of an employee's family member. Reproductive-related losses, however, largely remained unaddressed. Such losses are a common occurrence with more than 1 in 4 pregnancies resulting in miscarriage, and they may result in post-traumatic stress disorder (with almost 1 in 3 women developing pos-traumatic stress disorder after a miscarriage).

    What Does this New Leave Require?

    SB 848 acts as a subset of California's bereavement leave law and increases an employee's leave entitlements for a reproductive loss event, which is defined as "the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction." Covered employers must provide up to five days of leave for reproductive loss events.

    The law limits the amount of reproductive loss leave to a maximum of 20 days within a 12-month period.  Thus, although an employee may be subject to multiple reproductive loss events in a 12-month period, an employer is not required to provide more than 20 days of reproductive loss leave.

    Like many other California leave laws, SB 848 prohibits employers from retaliating against any employee for requesting or taking leave for a reproductive loss.

    California employers with five or more employees are covered under the law. Only employees who have worked for the employer for at least 30 days are eligible for reproductive loss leave.

    Subject to narrow exceptions when an employee takes applicable leave under state or federal law, eligible employees must take the leave within three months of the event triggering the leave (i.e., reproductive loss events), but need not be taken on consecutive days.

    Leave under the statute is unpaid, unless the employer has an existing policy requiring paid leave. Eligible employees may choose to use any accrued and available paid sick leave or other paid time off for reproductive loss leave.

    SB 848 does not contain any provision permitting employers to request any documentation in connection with reproductive loss leave.

    In light of this new leave entitlement, steps that a California employer may wish to take include:

    • Updating their employee handbooks and/or leave policies to incorporate this new leave entitlement.
    • Training management, supervisors, and HR on this new leave law.
    • Determining whether reproductive loss leave will be paid pursuant to any existing employer-provided leaves or policies.

    Rick Reyes, Joy C. Rosenquist, and Adam Fiss are attorneys with Littler in California. ©2023. All rights reserved. Reprinted with permission. 

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    Source: SHRM 

    https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-reproductive-loss-leave.aspx

  • 20 Oct 2023 11:52 AM | Bill Brewer (Administrator)

    Close-up of GE business logo

    The payout represents the “largest ever in an ERISA case alleging a retirement plan improperly offered proprietary funds,” according to the plaintiffs.

    Published Oct. 13, 2023 by Ryan Golden

    Dive Brief:

    • General Electric will pay $61 million to settle a class-action lawsuit brought by participants and beneficiaries of its 401(k) retirement plan, according to court documents filed Oct. 6.
    • The settlement concludes nearly six years of litigation stemming from a complaint filed in the U.S. District Court for the District of Massachusetts in 2017. The plaintiffs alleged GE breached its fiduciary duties under the Employee Retirement Income Security Act by limiting actively managed funds available to participants to a group of five funds that were managed by a wholly owned subsidiary of GE.
    • The funds at the center of the suit also “substantially underperformed” other comparable investment options, and GE refused to consider replacing the funds or their managers, the plaintiffs alleged. Per the settlement terms, GE denied all claims and allegations of wrongdoing.

    Dive Insight:

    In their motion for approval of the settlement, the plaintiffs claimed that the $61 million payout represents the “largest ever in an ERISA case alleging a retirement plan improperly offered proprietary funds.” Additionally, a plaintiffs’ damages expert calculated the reasonable recoverable damages in the range of $283 million, the plaintiffs said.

    The settlement total nonetheless represents approximately 21.5% of the figure cited by the plaintiffs, “which is at the higher end of settlement recoveries approved in other ERISA class action settlements,” according to the motion.

    ERISA requires persons or entities who exercise discretionary control or authority over retirement plan management or assets to uphold fiduciary responsibilities. Such responsibilities include running the plan solely in the interest of participants and fiduciaries and diversifying plan investments in order minimize risk, according to the U.S. Department of Labor.

    Recent years have seen retirement plan litigation settled for similarly high dollar amounts. In July, DOL announced that one investment management firm would pay upwards of $124 million to settle allegations that it mismanaged an employer’s 401(k) plan through a “self-proclaimed strategy of non-diversification,” resulting in losses for more than 9,000 participants.

    In 2022, the agency settled with Wells Fargo, which agreed to pay $145 million over claims the bank overpaid for preferred stock. That same year, DOL sued the owner of a New Jersey-based design firm for allegedly using plan assets to invest in a bank owned by the owner’s spouse. The defendants in that case entered a consent order with DOL in which they agreed to pay more than $1.8 million to plan participants.

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    Source: HR Dive

    https://www.hrdive.com/news/general-electric-401k-settlement-fiduciary-class-action/696607/

  • 20 Oct 2023 11:38 AM | Bill Brewer (Administrator)

    A stethoscope rests on a medical insurance claim form.

    The average premium was nearly $8,500 for single coverage and nearly $24,000 for family coverage this year, according to the study published in Health Affairs.

    Published Oct. 18, 2023 by Emily Olsen

    Dive Brief:

    • The average annual premium for both employer-sponsored single and family health insurance coverage rose 7% in 2023, faster than last year but consistent with inflation and wage growth, according to a survey conducted by KFF and published in Health Affairs. 
    • The average premium was $8,435 for single coverage and $23,968 for family coverage this year. On average, workers contributed 17% of the premium for single coverage and 29% of the premium for family coverage.
    • Many employers surveyed raised concerns about their workers’ views of health plan performance. Fifty-eight percent said their employees had a high or moderate level of concern about the affordability of cost sharing. About half said their workers had a high or moderate level of concern about their ability to schedule timely appointments or the complexity of prior authorization requirements. 

    Dive Insight: 

    Employer-sponsored insurance is the largest source of health coverage in the country, covering almost 153 million nonelderly people this year, according to the survey.

    Providing insurance is also increasingly pricey for employers, and many are disappointed with their plans when assessing their ability to provide high-quality care, according to a report from the Leapfrog Group published earlier this year.

    The KFF survey on employer health benefits, which is conducted annually, noted that premiums have historically risen faster than inflation and wages, with the average family premium growing 47% over the past decade while inflation grew 30% and wages grew 42%.

    However, during the past five years, these metrics have seen similar cumulative increases.

    “This is in part due to the decline in use of health services during the COVID-19 pandemic, as well as the end of a prolonged period of very low inflation,” the study’s authors wrote. “There is no way to know whether this is a transient trend or a new pattern in the costs of care.”

    People with employer-sponsored coverage generally have to pay for some portion of their care out of pocket. Ninety percent of workers were enrolled in a plan with a general annual deductible for single coverage this year, according to the survey. Nearly two-thirds of them had a deductible of $1,000 or more, while 31% were enrolled in a plan with a deductible of $2,000 or more. 

    Eighty-three percent of employees faced some type of cost sharing for inpatient hospital services, while 68% had a copayment and 19% had a coinsurance payment when visiting a primary care doctor this year. 

    Despite the increased premiums, employers report some challenges with their provider networks.

    Though most said their largest plan had enough primary care providers to offer timely access to care for their workers, firms weren’t as satisfied with access to mental healthcare or substance use services. Only 68% of small companies, with three to 199 workers, and 59% of large firms, with 200 or more employees, felt there was a sufficient number of mental healthcare providers. 

    Coverage for abortion care, facing upheaval in the wake of the Dobbs decision, is still up in the air for many firms. Among large employers, 32% said legally provided abortions are covered in most or all circumstances, 18% said they’re covered only under limited circumstances and 40% responded “don’t know.”

    “The fairly large share of respondents (40 percent) who answered ‘don’t know’ to the abortion coverage question may reflect the complexity and fluidity of the issue as states continue to consider and pass abortion legislation and state courts continue to consider legal challenges seeking to block these abortion restrictions,” the study’s authors wrote.

    Some companies have added travel benefits for workers who can’t access abortion services where they live. Seven percent of large companies either provided or planned to provide financial assistance for abortion travel expenses, while 19% of firms with 5,000 or more workers reported these benefits. 

    Telehealth care, which experienced its own disruption as utilization increased during the COVID-19 pandemic, still remains a part of employer-sponsored coverage. Nearly all employers offered health benefits that covered services provided via telehealth in their largest health plan this year. 

    Forty-one percent of firms with 50 or more workers said they believed telemedicine would have a “very important” role when it came to delivering behavioral healthcare going forward, compared with 27% for primary care and 16% for specialty care. 

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    Source: HR Dive

    https://www.hrdive.com/news/premiums-rise-7-percent-employer-sponsored-health-insurance-kff-health-affairs/697057/

  • 20 Oct 2023 11:36 AM | Bill Brewer (Administrator)

    US companies to increase levels of pay communication | HRTech Edge | Best News on Marketing and Technology

    October 12, 2023

    Still, many struggle to educate their managers and employees effectively on pay and pay equity

    ARLINGTON, VA, October 12, 2023 – A majority of U.S. organizations are communicating pay information to their employees, according to a new survey by leading global advisory, broking and solutions company WTW (NASDAQ: WTW). The 2023 Pay Transparency Survey found that increasing regulatory requirements are encouraging organizations to communicate their organization’s broader pay policy. However, barriers to pay transparency remain as employers fear increasing questions and are concerned about their effectiveness in educating their workforce on this complex topic.

    Many U.S. organizations are providing more visibility into their pay programs and practices.”

    Mariann Madden | North America Fair Pay co-lead, WTW

    The survey found most U.S. organizations are communicating different components of their pay program information to employees. Six in 10 are disclosing job levels to their employees, and almost half (48%) are communicating how individual base pay is determined and progresses. Over one-third of companies (36%) are disclosing individual pay ranges to employees, but an even larger number (46%) are planning or considering doing so in the future.

    Regulatory requirements are the most commonly cited (81%) factor for encouraging greater levels of pay program communication. Other commonly cited factors include company values and culture (55%) and employee expectations (54%), followed closely by an environmental, social and governance and diversity, equity and inclusion agenda (53%).

    “Many U.S. organizations are providing more visibility into their pay programs and practices,” said Mariann Madden, North America Fair Pay co-lead, WTW. “Boards of directors are taking ownership for pay equity and pay transparency and are looking for organizations to define, monitor and report on their commitments and priorities. Pay equity and transparency are closely linked. It will be very difficult to have confidence in one without the other in place.”

    WTW’s survey found 38% of U.S. employers are communicating or planning to communicate publicly a pay equity commitment. A smaller number have communicated their pay transparency commitment; however, 44% of companies are planning or considering what they will share.

    While these mandates are still only enacted in less than 10 states, regulatory requirements are driving more employers to communicate pay information. For prospective employees, nearly two in five respondents are communicating or planning to communicate pay rate or pay range information regardless of requirements. Of the 91% of companies communicating or planning to communicate pay ranges, 65% are disclosing a hiring rate/range for the job. A majority of organizations are using a consistent approach to what is shared and what pay range/rate is disclosed.

    Half (50%) of employers believe communicating pay rates or ranges will increase questions from current employees. Manager effectiveness concerns are also top of mind for employers (47%). Indeed, although managers are the most common channel for communicating pay program information (84%), only 38% of organizations report being effective at educating managers about this complex topic.

    “We are at a tipping point with pay transparency,” said Lindsay Wiggins, North America Fair Pay co-lead, WTW. “Organizations need to get their house in order by developing and actively managing foundational job architecture and leveling frameworks and conducting equal pay, pay gap and pay driver analyses to uncover and address areas of risk. Understanding their current state will support businesses in their efforts toward addressing the various legislative requirements but also in providing greater transparency into their talent and rewards programs and practices.”

    About the survey

    WTW’s 2023 Pay Transparency Survey was conducted in July 2023. In the U.S., a total of 448 respondents completed the survey. Globally, a total of 1,313 respondents completed the survey.

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    Source: WTW

    https://www.wtwco.com/en-us/news/2023/10/us-companies-to-increase-levels-of-pay-communication

  • 20 Oct 2023 11:07 AM | Bill Brewer (Administrator)

    October 18, 2023 — 03:08 pm EDT

    Written by Jody Godoy for Reuters ->

    By Jody Godoy

    Oct 18 (Reuters) - A U.S. appeals court upheld Nasdaq's board diversity rule on Wednesday, requiring companies listed on the exchange to have women and minority directors on their boards or explain why they do not.

    National Center for Public Policy Research and the Alliance for Fair Board Recruitment, a group formed by conservative legal activist Edward Blum, had asked the 5th U.S. Circuit Court of Appeals to block the rule.

    The groups sued the U.S. Securities and Exchange Commission (SEC), which approved the rule in August 2021.

    The rule requires companies to have one director who identifies as female, a member of an underrepresented racial or ethnic minority, or LGBTQ+ by the end of this year or explain why they do not. Companies would generally need two diverse directors to satisfy the rule by 2026.

    Companies also have to disclose annually how board members identify in those categories, although the individuals can decline to answer.

    The groups said the rule violates the U.S. Constitution's prohibition of discriminatory laws and restraints on free speech. They argued that those restrictions on government extend to Nasdaq because the SEC could penalize the exchange if it does not enforce the rule.

    The SEC and Nasdaq argued that the exchange is a private entity not bound by restrictions on government. They said the rule is not a quota but a disclosure requirement that provides standardized information on board diversity.

    Several Republican state attorneys general had weighed in against the rule, while institutional investors and a coalition of Nasdaq-listed companies, among others, filed briefs in support.

    The case is Alliance For Fair Board Recruitment v. SEC, 5th U.S. Circuit Court of Appeals, No. 21-60626.

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    Source: Nasdaq.com

    https://www.nasdaq.com/articles/u.s.-court-upholds-nasdaq-board-diversity-rule

  • 03 Oct 2023 9:35 AM | Bill Brewer (Administrator)

    Conversation Starter: More Than Half of Professionals Did NOT Negotiate Salary for Most Recent Job. - Glassdoor Economic Research

    Salary negotiation is one of the most common topics professionals seek content on, but it’s still hard to get a macro understanding of who’s negotiating and who isn’t. Professionals in the Glassdoor community are weighing in on if they negotiated their salary for their most recent job and the data may surprise you. More than 6,500 professionals weighed in and more than half of them (54%) did not negotiate their most recent salary. 

    How does that break down by industry? Salary negotiation is most common among advertising, marketing, and tech professionals—with 67%, 62%, and 56% of them negotiating their most recent salary, respectively. Which industries had the least negotiation? Just 22% of graduate students and 37% of accounting and law professionals negotiated their most recent salary. 

    What about age? 56% of professionals between the ages of 36-40 negotiated their most recent salary, while 55% of those aged 41-44 and 50% of those aged between 30-35 did the same. Younger professionals are less likely to negotiate pay, with just 27% of those aged 21-25 and 44% of those between 26-29 negotiating their most recent salary. 

    And gender? Men and women are equally as likely to negotiate, with 46% of men and women having negotiated their most recent salary.  

    Methodology: This poll ran from August 9, 2023 through August 14, 2023 and was answered by 6,673 professionals on Fishbowl by Glassdoor. Respondents could answer with either “Yes” or “No” to the question, “For your most recent job, did you negotiate your salary?” 

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    Source: Glassdoor

    https://www.glassdoor.com/research/conversation-starter-more-than-half-of-professionals-did-not-negotiate-salary-for-most-recent-job

  • 03 Oct 2023 9:31 AM | Bill Brewer (Administrator)

    Employers Budgeting 4% Pay Raises in 2024

    September 25, 2023 09:28 AM Eastern Daylight Time

    NEW YORK--(BUSINESS WIRE)--Today, Mercer, a global leader in redefining the world of work, reshaping retirement and investment outcomes, and unlocking real health and well-being, and a business of Marsh McLennan (NYSE: MMC), released the results of its August 2023 Mercer QuickPulse™ US Compensation Planning Survey. According to the survey, employers in the US plan to raise their compensation budgets by 3.5% for merit increases for 2024 and 3.9% for their total salary increase budgets for non-unionized employees. This compares to actual merit increases of 3.8% and 4.1% for total salary increase budgets for non-unionized employees in 2023.i

    “While preliminary compensation budgets for 2024 are showing a slight decline, they remain well above pre-pandemic levels, reflecting the ongoing tightness of the labor market and low levels of unemployment. However, if the labor market continues to stabilize and inflation cools further as we move towards the end of the year, compensation pressures are likely to continue to decline. This could prompt further reductions in 2024 compensation increase budgets, as employers adjust their strategies to reflect the changing economic landscape,” said Lauren Mason, Senior Principal, Career, Mercer.

    Across industries, Healthcare Services are projecting 2024 budgets that lag other industries, with merit budgets of 3.1% and total increase budgets of 3.4%, as the industry continues to recover from the financial impact of the pandemic. Recent layoffs and financial strain on the high-tech industry also appear to be impacting merit budgets, with projected increases of 3.3%, a reversal of historical trends where high-tech typically led increases across industries. Several industries, including Energy and Consumer Goods, are planning merit budgets above the national average, projecting an increase of 3.7%.

    The survey also found that employers are planning to promote less (8.7% of the employee population) and therefore will allocate less of their budget (1.1%) to promotional increases in 2024. In 2023, employers reported that they promoted 10.3% of their population, allocating 1.2% of their salary budget to do so.

    Looking back at actual compensation increases over the last year, employer base salary levels increased 5.6%ii on average, despite 2023 merit increase budgets of 3.8%. This is a result of off-cycle pay increases which 59% of employers reported providing in 2023. The top reasons cited for off-cycle increases were to address retention concerns, counteroffers, market adjustments, and internal equity.

    Ms. Mason continued, “As employers plan for 2024, it is crucial that they move away from the reactive approach of the past few years and adopt a more strategic approach. This will enable employers to focus their compensation investments on the most critical attraction and retention segments of their workforce, while also ensuring that pay increases are distributed fairly and equitably.”

    Note to editors:

    Total increase budgets include other base pay increases such as promotional pay increases and cost of living adjustments, in addition to merit increases.

    About Mercer’s US Compensation Planning Survey

    The August 2023 Mercer QuickPulse™ US Compensation Planning Survey includes data from more than 900 organizations in the US, from small employee bases (less than 500 employees) to very large employee bases (over 20,000 employees) across 15 industries. This study was fielded between July 31st - August 11th. You can review more of the survey findings here.

    About Mercer

    Mercer believes in building brighter futures by redefining the world of work, reshaping retirement and investment outcomes, and unlocking real health and well-being. Mercer’s approximately 25,000 employees are based in 43 countries and the firm operates in 130 countries. Mercer is a business of Marsh McLennan (NYSE: MMC), the world’s leading professional services firm in the areas of risk, strategy and people, with more than 85,000 colleagues and annual revenue of over $20 billion. Through its market-leading businesses including MarshGuy Carpenter and Oliver Wyman, Marsh McLennan helps clients navigate an increasingly dynamic and complex environment. For more information, visit mercer.com. Follow Mercer on LinkedIn and Twitter.

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    Source: Mercer

    https://www.businesswire.com/news/home/20230925303517/en/US-employers-plan-more-modest-compensation-increases-in-2024

  • 12 Sep 2023 9:16 AM | Bill Brewer (Administrator)

    U.S. salary increase budgets hit 20-year high

    By Dawn Kawamoto - September 7, 2023

    U.S. employers made bold moves this year on compensation, pushing salary increase budgets to a 20-year high, despite fears of resurgent inflation and recession, according to a WorldatWork survey released this week. But the momentum is expected to slow by next year.

    Increases to salary budgets rose to 4.4% on average this year, slightly higher than earlier projections of 4.1%, and also marking the highest level since the 2001 peak of 4.5%, according to the survey of more than 2,000 U.S. employers. Last year, salary increase budgets stood at 4.1%.

    A tight labor market and cautious economic optimism contributed to the increase, Liz Supinski, director of research and insights at WorldatWork, tells HRE.

    “While there are still many concerns about recession, there is significant speculation among economists that we might achieve a soft landing,” Supinski says. “A number of economists are now speculating that we might see a novel kind of recession that is not accompanied by the large-scale job loss that we’ve seen in past recessions.”

    But despite higher-than-expected salary increase budgets this year and more optimistic outlooks on the economy, budgets are expected to slightly drop next year, to 4.1%, according to the survey.

    Supinski characterizes the shift as a migration back to what was seen as “normal”: 3%-3.5% salary increases that largely prevailed for most of the last 20 years, until 2022.

    The forecasted 2024 decline, she adds, may also be the result of an easing of the intensity of the labor market pressures as the impact of economic policy decisions filters out.

    This year, salary hikes were more impacted by labor market pressures than recessionary fears, though the increases were still moderate, she notes.

    HR can address those labor market pressures by looking beyond base salaries.

    “Variable pay continues to play an important role in compensation and allows organizations greater flexibility in responding to business and economic conditions than do base salary increases,” Supinski says. “So, [this] will continue to be a focus for many employers.”

    Notable salary increase budgets around the world

    WorldatWork’s report found higher-than-anticipated salary boosts around the world this year. In the United Kingdom, for instance, the average salary increase rose 4.5% compared with a projected 3.9%, according to the survey.

    One country posting consistent growth in salary increase budgets was Mexico. In 2021, the average rose to 4.7%, then 5.7% the following year and last year jumped to 6.3%.

    India, meanwhile, garnered the largest increase of the 18 countries where employers were surveyed. The average salary increase in India was a hefty 9.8% this year, bringing it closer to the pre-pandemic level of 9.9%. Last year, however, employers there doled out salary increases that averaged 10.1%.

    Meanwhile, in the U.S., all states are expected to experience a decline in 2024, which is anticipated to range from a 0.1% drop in salary increase budgets in Arizona and California to a 0.4% fall in Alaska and North Dakota.

    Layoffs may be even lower in 2024

    In addition to salaries rising across the globe this year, employers are scaling back on layoffs, according to the WorldatWork survey.

    This year, 70% of employers worldwide reported no layoffs and a whopping 91% expect the same for 2024, states WorldatWork in its report.

    And in the U.S., 61% of employers report no layoffs this year and 87% have similar expectations for next year.

    Despite that, Supinski cautions HR not to read too much into the numbers.

    “It was a broad, exploratory question, intended mostly as a screener to identify what portion of organizations were repurposing savings from layoffs for salary budget increases,” she notes.

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    Source: Human Resource Executive

    https://hrexecutive.com/u-s-salary-increase-budgets-hit-20-year-high/?oly_enc_id=1127F6638590B7V  

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