THE U.S. Department of Labor has issued its long-awaited proposed changes to the nation’s overtime rules for American workers, proposing to increase the threshold for exempt status by more than 50% to just over $55,000.

Under DOL rules, workers who are exempt from overtime rules — typically managers, executives, and certain administrators — must make at least the threshold amount, which is currently $35,568.

If the new threshold goes into effect, employers will have a choice to either raise the pay of their currently exempt staff to the new threshold (or above) or change those workers to non-exempt, meaning they must be paid overtime wages (typically time and a half) if they work overtime.

It’s rumored this proposal is on a fast track and that it could become permanent in the next few months, giving employers a short window to make changes.

Title alone does not designate someone as “exempt.” There is a two-pronged test for classifying a worker as exempt from overtime pay:

• Their salary, which will have to be $55,068 per year, under the rule.
• The duties test, which outlines exactly what someone’s duties must be in order to qualify for exempt status (see box in the column on the right).

 

 

 

 

 

 

 

 

 

 

 

 

 

How to prepare

Start by making a list of all your current exempt employees who earn between $35,568 and $55,068 a year.
You will have a decision to make about these workers:

• Raise their salaries to meet the new threshold, or
• Change them to non-exempt status so they are eligible for overtime pay if they work extra hours. You’ll also have to put in place systems for tracking their hours worked, including overtime.

Also, you may have to change benefits for anyone whose status changes. You should plan how you are going to communicate these changes to your workforce.

With more and more California businesses being forced to go to the California FAIR Plan for their coverage, the market of last resort has moved to increase its commercial property coverage limits significantly.

This should bring a semblance of relief to companies located in wildfire-prone areas, who have seen their commercial property insurance non-renewed and who have been unable to find replacement coverage. The decision comes as commercial property rates continue rising due to inflationary pressures, but in particular for companies located in areas that are considered urban-wildland interfaces.

Insurers have pulled back on underwriting commercial properties as well as homes in these areas. They’ve taken a number of actions, including:

• Retreating from the California market altogether.
• Selectively underwriting properties that are not considered at-risk.
• Capping their exposures by only covering a set number of properties.
• Requiring property owners to create defensible spaces and take other measures to harden their properties against wildfires.
• Raising rates significantly.

Businesses whose policies are not renewed and who can’t find coverage in the market are able to go to the FAIR (Fair Access to Insurance Requirements) Plan for coverage. This is the market of last resort and premiums can be substantial, while the policy limits have often been inadequate to cover the full cost of the commercial enterprise’s property.

 

Policies cover damage caused by:

• Fire
• Lightning
• Internal explosion

Optional coverages are available at an additional cost, such as coverage for vandalism and malicious mischief.
If you have to go to the FAIR Plan, we can arrange for a “differences in conditions” policy that will cover the areas in which the plan is deficient compared to a commercial property policy.

The FAIR Plan will cover the following commercial structures:

Habitational buildings – Buildings with five or more habitational units such as apartment buildings, hotels, or motels.
Retail establishments – Shops such as boutiques, salons, bakeries, and convenience stores.
Manufacturing – Companies that manufacture most types of products.
Office buildings – Offices for professionals such as design firms, doctors, lawyers, architects, consultants, or other office-based functions.
Buildings under construction – Residential and commercial buildings under construction from the ground up.
Farms and wineries – Basic property insurance for commercial farms, wineries, and ranches, not including coverage for crops and livestock.

Cal OSHA has proposed its long-awaited indoor heat illness prevention standard as increasingly hot summers are affecting workers in indoor spaces like warehouses, production operations,
restaurants and more.
The proposed standard, largely based on the state agency’s outdoor regulations, will require employers whose workplaces at times are at least 82 degrees to have a written Indoor Heat Illness Prevention Plan.
The standard, once it takes effect, will affect employers throughout the state and many will have to take steps and invest in equipment and planning to ensure compliance. The preventative measure to which most employers will likely resort is air-conditioning.
The Standards Board wrote in its proposal, according to the Cal-OSHA Reporter trade publication: “There is likely to be a particular need to reduce temperatures in large warehouses, manufacturing and production facilities, greenhouses, and wholesale and retail distribution centers.”
Other facilities that would likely also need to install HVAC units include restaurant kitchens and dry cleaners. They may also need to improve air circulation in their operations.
Under the proposal, the following regulations apply to a workplace where the indoor temperature exceeds 82 degrees.

Access to drinking water

Employers are required to provide access to potable water that is fresh, suitably cool, and free of charge.
It must be located as close as practicable to the work area, as well as indoor cool-down areas where employees can rest. If an employer doesn’t provide water continuously, it will be required to provide at least one quart per hour per employee per shift.
Employers should encourage frequent water consumption.

Access to cool-down areas

Employers must provide at least one cool-down area during shifts, and grant a cool-down break to staff who ask for one.
Workers taking cool-down breaks shall be monitored and asked to stay in the area if they are experiencing heat illness symptoms. As long as symptoms persist, they may not be ordered back to the work they were doing.

Control measures

Employers can implement a number of measures to protect their workers:
Engineering controls – This can include barriers between heat sources and employees, isolating hot processes from workers, air-conditioning, cooling fans, mist fans, swamp coolers, ventilation, etc.
Administrative controls – This can include limiting exposure by adjusting work procedures, practices, or schedules (working during cooler periods, using work/rest schedules, or reducing the speed of work).
Personal heat-protective equipment – This could include water- and air-cooled garments, cooling vests, and more.

Emergency response procedures

Employers will need to develop and have in place emergency response procedures that workers and supervisors can follow in case they are experiencing heat illness.

Acclimation steps

Employees should be closely observed during heat waves, and new workers must be closely observed during their first 14 days of work to ensure they are acclimating.

Training

Employees and supervisors will need to be trained on:

• Personal risk factors for heat illness.
• Their employer’s procedures for complying with the regulation.
• The importance of frequent water consumption.
• The importance of acclimation.
• Signs and symptoms of heat illness, and first aid or emergency response procedures.

The Equal Employment Opportunity Commission has issued new guidance on how employers can properly use software, algorithms and artificial intelligence-driven decision-making tools when screening job applicants and selecting candidates.
The EEOC has grown concerned about possible adverse impacts of these technologies that can help employers with a wide range of employment matters, like hiring decisions, recruitment, retention, monitoring performance, and determining pay, promotions, demotions, dismissals and referrals.
The guidance follows the EEOC’s recent announcement that it would pursue enforcement of violations of Title VII of the Civil Rights Act of 1964 and other statutes under its jurisdiction arising from use of AI in employment decisions.

The new guidance includes a series of questions and answers to help employers prevent the use of AI and other technologies from leading to discrimination on the basis of on race, color, religion, sex or national origin, in violation of Title VII.

Main points of the guidance:

Responsibility: Employers are ultimately responsible for discriminatory decisions rendered by algorithmic decisionmaking tools, even if they are administered by another entity,
such as a software vendor.
Assessment: Employers should assess whether their use of technology has an adverse impact on a particular protected group by checking whether use of the procedure causes a selection rate for individuals in the group that is “substantially” less than the selection rate for individuals in another group.

The selection rate for a group of applicants or candidates is calculated by dividing the number of persons hired, promoted or otherwise selected from the group by the total number of candidates in that group.
If an employer is in the process of implementing a selection tool and discovers that using it would have an adverse impact on individuals of a protected class, it can take steps to reduce
the impact or select a different tool, per the guidance.
If an employer fails to adopt a less discriminatory algorithm than that which was considered during the implementation process, it could result in liability, according to the EEOC.

The takeaway

Employers using algorithmic decision-making tools for employment decisions need to take the same care as they do when making employment moves without assistance from technology.
Firms should not implement these technologies without considering possible adverse decision-making that could lead to violations of the law and prompt litigation and regulatory
action by the EEOC.
Experts advise that you move forward carefully and work with the vendor to ensure the technology doesn’t get your organization in trouble.

If you have staff who work remotely, you’ll want to pay attention to changes that are coming to the workers’ compensation class code you use for them.
Starting Sept. 1, California’s telecommuter class code will finally get its own pure premium rate, that is lower than what’s currently being charged.
Since many people started working remotely after the COVID-19 pandemic began in 2020, the Workers’ Compensation Insurance Rating Bureau created a new telecommuter class code (8871) and tethered its pure premium advisory rate to the 8810 clerical classification for easier administration.
Now, under the Rating Bureau’s workers’ compensation regulatory filing which was adopted by the California Department of Insurance on May 25, code 8871 will receive its own rate, separate from the clerical rate. In fact, the new telecommuter rate will be 25% lower than the clerical rate due to the former’s lower losses and higher average payroll.
If you have remote workers, you’ll want to ensure they are in the telecommuter class code to enjoy the lower premium.

New X-Mod threshold

The approval of the filing also increases the workers’ comp premium threshold for experience rating (being eligible for an X-Mod) to $10,200 from $9,200 to account for wage inflation.

Restaurant classification split

Other changes include splitting the 9079 restaurant classification into six new codes (see box below), effective Sept. 1, 2024.
While there will be six codes, they will still be combined for rate-making purposes until the Rating Bureau collects a few years of data from the new codes, so that it can set individual rates
for each of them.

ONE OF THE most common construction industry accidents is falls from heights, which is why it’s crucial that you have in place fall protection systems for your workers.
One of the best ways to prevent injuries and death from falls is by using a fall-arrest system. But while these systems can save lives, they can cause suspension trauma if the worker is not rescued and brought to ground level as soon as possible and is instead left suspended in an upright position, with their legs dangling.
Because the worker is suspended in an upright position with their legs hanging, blood begins to accumulate in the legs.
This is commonly called venous pooling (the accumulation of too much blood in the veins), which reduces the flow of oxygenated blood to the heart and brain.
Remaining in this position for a long time can cause the worker to pass out and the longer they hang in place, the more it can result in serious health problems – and even death.

How to avoid suspension trauma Safe, prompt rescue is the key to preventing suspension trauma. The sooner a worker can be rescued, the less likely they are to endure such trauma.
During the rescue, care should be taken to slowly put the victim back on the ground. Try to avoid suddenly letting them into a horizontal position, which can cause deoxygenated blood to flow back into the body (reflow syndrome) and cause damage to the brain and other organs – and even cause the heart to stop.
Suspended workers awaiting rescue can take some action to guard against injury, including:

• Adopting a sitting position, if possible.
• Moving into a horizontal position as much as possible.
• Using their legs to push off from a hard surface, keeping the muscles active.
• Pumping legs frequently to maintain blood flow and prevent venous pooling.

One of the primary ways to slow the progression of suspension trauma is to stand up. When standing, the leg muscles must contract to provide support and maintain balance and these actions also put pressure on the veins. This pressure, along with a series of one-way valves in the veins, helps blood get to the heart and reduces the amount of blood pooling in the legs.
Workers can “stand” by using the trauma-relief straps that are attached in pouches on the side of the fall-arrest harness. When suspended, the worker can deploy the trauma-relief straps, which provide a loop that they can put their feet into and press against to simulate standing up.

 

THE NATIONAL Labor Relations Board has issued a decision that non-disparagement and confidentiality clauses in employee severance agreements are illegal.
The board ruled that these provisions stifle employees’ and ex-employees’ rights under Title 7 of the National Labor Relations Act to discuss work and their employer with one another, among other things.
Since the NLRB’s decision applies to both unionized and non-unionized workers, legal experts advise all employers to revisit their severance agreement templates. However, the decision only covers employees – and not severance agreements for supervisors or managers, who are not afforded rights under Title 7.
Decision is far-reaching In the case before the NLRB, an employer decided to lay off a group of union workers and offered them a severance agreement that included them receiving additional months of pay and benefits depending on their tenure with the company.
It also included a standard confidentiality clause and non-disparagement clause that is found in many severance agreements:

Confidentiality Agreement. “The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.”

Non-Disparagement Agreement. “At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents, and representatives.”

The ruling

The board ruled that merely including non-disparagement and non-disclosure agreements in severance agreements constituted unfair labor practices under Title 7, which guarantees employees (in part):

“The right to self-organization … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Translation: Workers have the right to discuss their jobs and even complain about their employer and management to one another.

The takeaway

The ruling may be appealed, but for now it stands and is not on hold. The decision will affect employers in virtually every industry and regardless of whether they have union workers or not.
If you plan to continue using severance agreements going forward, you should consult your legal counsel, particularly if your current agreements contain the clauses that offended the NLRB.

A NEW STATE law that allows for digital license plates to be installed on vehicles in California, may have created a privacy nightmare for employers.
The Motor Vehicle Digital Number Plates Act, which took effect Jan. 1, enables fleet and commercial vehicle owners to purchase and install digital license plates and soon-to-be-approved alternative devices for tags, stickers, tabs, and registration codes that can track vehicles and make registration easier.
The new law has significant implications for fleet and commercial vehicle owners that want to track vehicles using a digital license plate or alternative GPS device, and they will need to follow the law’s driver disclosure requirements to avoid fines.

What employers can and can’t do

The law allows fleet and commercial vehicle owners to track vehicles through the digital license plate as long as it is “strictly necessary for the performance of the employee’s duties.” Employers may only monitor them during work hours.
If you choose to monitor employees, you are required to provide them with a notice, which under AB 984 must – at a minimum – include the following:

• A description of the activities that will be monitored.
• A description of the worker data that will be collected.
• A notification of whether the data gathered through monitoring will be used to make or inform any employment-related decisions, including disciplinary and termination decisions.
• A description of the vendors or other third parties, if any, to which information collected through monitoring will be disclosed or transferred.
• Names of personnel authorized to access the data.
• Dates, times, and frequency of monitoring.
• Where the data will be stored and for how long.
• A notification of employees’ rights to disable monitoring, including vehicle location technology, outside of work hours.

Firms that violate the law can be subject to:

• Civil penalties of $250 for the initial violation, and
• $1,000 per employee for each subsequent violation.

For subsequent violations, penalties will be calculated per employee, per violation, and per day an employer monitors its workers without proper notice.

The takeaway

With potential civil penalties at stake, employers that want to use these plates should tread carefully, legal experts say.
If you want to use them, you should revise your employee handbook to include the required notice. Additionally, if you plan to monitor employees using these plates, ensure you get their signatures on the disclosure form.
Be aware that you may need to comply with other legal requirements to protect your employees’ privacy, including how you handle, store, and convey data from the plates.

 

A U.S. COURT of Appeals has struck down a landmark California law that prohibits employers from requiring their workers to sign agreements to arbitrate any disputes arising from their employment.
The ruling clears the way for employers to continue using arbitration agreements without risking criminal liability that the law – AB 51 – calls for. The law took effect Jan. 1, 2020, but after a coalition of employers led by the California Chamber of Commerce sued to block the measure’s implementation, a lower-court judge issued a temporary restraining order, halting enforcement until the matter could be resolved by the courts.
Arbitration agreements usually require both the employer and employee to submit any employment-related disputes to arbitration, rather than to the traditional court process. They are designed to reduce tension and save both parties money and time.
The Chamber said the Feb. 15, 2023 ruling by the Ninth U.S. Circuit Court of Appeals invalidating the law was a win for the state’s employers. The business advocacy group had asserted that the law contradicted federal legislation and would result in increased litigation and higher costs for employers and workers alike.
The ruling by the Ninth Circuit upheld a lower court’s preliminary injunction order and holding that AB 51 is preempted by the Federal Arbitration Act (FAA).

What did AB 51 require?

The law made it a criminal misdemeanor for an employer to require an existing employee or a job applicant to sign an arbitration agreement as a condition of employment.
However, due to a quirk in the law, even though an employer could be subject to criminal prosecution if it required employees to sign arbitration agreements, the contracts, if signed, would still be enforceable.
The law was written in this way to avoid conflicting with the FAA. But in the end, the court opined that AB 51 was preempted by the federal law after all.

The takeaway

The ruling paves the way for employers to continue using arbitration agreements with employees in the Golden State. That said, if you are using such agreements or plan to, you should consult with your legal counsel to ensure your agreement is up to date.
If the case is not appealed, the court’s opinion will likely lead to the law being nullified.
But an appeal would be an uphill battle, legal observers say. “SCOTUS (the U.S. Supreme Court) has clearly said that state rules burdening the formation of arbitration agreements are at odds with the FAA,” the law firm of Fisher Phillips wrote in a blog about the ruling.
One important note: The Ninth Circuit’s decision does not affect the federal Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which gives employees the right to opt for arbitration agreements and class- or collective-action waivers if they are making sexual assault or sexual harassment claims.

A new report found that one-third of companies who are hit with ransomware and pay the hackers to unlock their systems, are often likely to be targeted a second time.

And after they pay, they are often faced with significant consequences, including system rebuilding costs, their data still being leaked and financial consequences, according to the “2022 Cyber Readiness Report” by Hiscox. The eye-opening results of the study come as the number of businesses hit by cyber attacks continues growing.

Considering the potential damage to your organization if your systems are compromised in the aftermath of a ransomware attack, even if you have cyber insurance to pay recovery costs, it’s best to take steps to thwart attacks in the first place.

More than ransom

It’s clear that paying a ransom often doesn’t mean the recovery for an affected business will be smooth, according to the report, which covers the poll results of 5,000 organizations.

The risk

Nearly half (47%) of firms reported that they had been hit by a cyber attack during the past 12 months, up from 40% in 2021. Of those who were attacked, 17% were ransomware victims.
The median cost of an attack has risen 29% to just under $17,000.
Small firms can no longer expect to fly under the radar as the criminals increasingly have them in their sights.

 

What you can do

Some firms have little exposure to a cyber attack, particularly if they don’t handle customer data or are not techdriven operations. Each firm has a different exposure level.
For companies that have cyber exposure, protecting their organization requires a multi-pronged approach that includes cyber insurance and strong data security protocols.
Cyber insurance may cover the cost of a paid ransom as well as recovery and rebuilding costs. If your organization has exposure, please give us a call to review your risk and see if cyber insurance is right for your business.

Besides that, Hiscox recommends taking a number of steps to protect against an attack and be able to recover from one faster:

1. Keep all of your software up to date to include the installation of all the latest security patches.
2. Frequently back up your data on a server that is not hooked up to the cloud.
3. Train workers on how to recognize and avoid common social engineering attacks that criminals use to trick them into revealing sensitive information about themselves or their company.
4. Teach your staff how to detect potentially dangerous e-mails that try to get them to click on a malicious link that can unleash ransomware or other malware.