We are settling into 2017 and winter is fading away. As springtime approaches and we clean out our closets and desks, it is also a good time to review your agency’s personnel rules and policies and give them a thorough “spring cleaning.” While reviewing and updating your personnel rules can be time-consuming, it is well worth the time in the long-run. Having updated personnel rules can help your agency implement current best practices and, most importantly, reduce potential liability. So take the time to make sure your rules comply with all new employment laws and regulations, cover all essential areas in these fast-changing times, and delete any confusing or obsolete rules.
Compliance with New Laws and Regulations
There are new employment laws and regulations taking effect all the time. We have previously reported on new laws affecting California employers for 2017 including the following three examples you should consider when updating your agency’s rules.
1. Minimum Wage
Effective January 1, 2017, the California state minimum wage increased to $10.50 per hour. The state minimum wage will increase to $11 per hour on January 1, 2018; $12 per hour on January 1, 2019; $13 per hour on January 1, 2020; $14 per hour on January 1, 2021; and $15 per hour on January 1, 2022. After that, the state minimum wage will continue to be adjusted annually based on the consumer price index (CPI). Are your rules and pay schedules in compliance? Do you have a plan for updating as necessary each year as the minimum wage continues to increase to $15 over the next several years and becomes adjusted annually after that?
2. Minding the wage-gap
We have also reported on recent changes to Labor Code section 1197.5. In 2016, California Labor Code section 1197.5 was amended to prohibit wage differentials based on sex. Effective January 1, 2017, Section 1197.5 was amended also to prohibit wage differentials based on race or ethnicity. This means the Labor Code now prohibits employers from paying an employee a wage rate less than the rates paid to employees of the opposite sex, or of a different race or ethnicity, for substantially similar work, when considering skill, effort, responsibility, which is performed under similar working conditions. Additionally, under this new law, prior salary alone cannot justify a disparity in compensation based on gender, race, or ethnicity. Wage differentials are still permissible, however, if they exist pursuant to a seniority system, a merit system, a system which measures earnings by quality or quantity of product, or another bona fide factor other than sex, race, or ethnicity.
Have you reviewed your Equal Employment Opportunity (EEO) policies and any rules or practices related to compensation to identify and remedy any discrepancies based on an employee’s sex, race or ethnicity for positions that perform substantially similar work? Failure to do so can leave your agency vulnerable to discrimination lawsuits.
3. Harassment Training for Elected Officials
Effective January 1, 2017, all local agency officials must receive sexual harassment prevention and education training if the agency provides “any type of compensation, salary, or stipend” to any of its officials. Agencies must also retain records of the dates local officials satisfy training requirements and of the entity that provided the training for at least five years following the training. Have you revised your harassment, discrimination and retaliation policies to reflect this? How about your training and records retention policies?
These are just a few examples of recent changes. There are always new laws and regulations on the horizon. A regular review will help ensure that your agency is in compliance with current laws and regulations.
Cover the Essential Areas
Policies on leaves and discipline are often easy to find in most agency personnel rules. But there are many other essential policies that are often left out of personnel rules. Some employees work two or more jobs in addition to their agency employment. But do the agency’s personnel rules have an outside employment policy that could identify any potential conflicts of interest? Employees are issued smartphones, tablets, laptops, email addresses, official social media accounts or vehicles. But does the agency have an equipment use policy that regulates use? And even more specifically, does the equipment policy even reference email, current commonly used electronic devices or social media? Most agency personnel rules cover harassment and most likely discrimination, but what about retaliation? Retaliation cases have been on the rise for many years. Likewise, workplace violence and bullying have increasingly become more prevalent. Does your agency have workplace violence and abusive conduct policies? It is important that your agency’s rules cover all the essential areas that affect employers in this day and age. It can be difficult to keep up with all the latest technological changes and workplace issues. That is why a regular review of your rules and policies is critical to maintain effective management and to reduce potential liability.
Delete Obsolete or Confusing Rules
Many personnel rules and policies have not been updated for years – in some cases, decades. This can leave rules that refer to departments, positions or technology your agency no longer has. While this may seem harmless, in some cases obsolete rules can lead to confusion in interpretation or enforcement. If supervisors and managers are confused about who the rules apply to or how to apply the rules, it may lead to uneven enforcement which can leave the agency vulnerable to a discrimination claim. It is best to review the rules periodically to make sure the rules make sense and to remove obsolete or confusing rules.
Finally, keep in mind that adoption of or changes to your personnel rules or policies may need to be negotiated with affected employee organizations.
Melanie L. Chaney, Partner in the Los Angeles office of Liebert Cassidy Whitmore, represents and regularly advises cities, counties, community college districts, school districts, public safety departments and special districts regarding employee and labor relations matters. She can be reached at mchaney@lcwlegal.com.
This article was published in the May 2017 issue of the Municipal Management Association of Northern California (MMANC)’s Municipal Magazine.