Dan
Welcome to Sound Business Insights. I am Dan Watkins. This episode’s about Employment law updates 2024 Part 2.
This podcast is not intended to provide legal advice.
Neil
Back in 2020, during the Covid Pandemic, there were a lot of workplace violence issues, and things seem to have calmed down a little bit, but there’s new regulations coming out about protections that we as employers have to put in place to protect against workplace violence. What’s changed and what do I need to know?
Dan
Before the law was this is a big change. The law was if you didn’t know anything about it, you’re not reliable. If someone beats up one of your employers or employees or they beat each other up,
Neil
Yeah,
Dan
I mean, what could I do? They’re free to beat on each other. But now you have to have complied with the rules of SB 553 and have a plan. Have someone who’s in charge of that plan, and then have a process where you evaluate hazards and go through all the steps,
Neil
Communicate it to the employees…
Dan
… communicate it to the employees, and it’s almost like you have a plan for when there’s a fire on your floor. You have to have someone who’s the fire, Mars or the captain, and they put a vest on and they start telling people, move the exits. It’s the same thing. You have to have a plan. You have to have ’em trained on it, implemented and ready to go. No one knows where this will ever stop any workplace violence. It’s only to stop you from being sued.
Neil
Amazing. And when do I get to manage employees and get work done?
Dan
Well, you got to do everything before you can actually go and try to make a profit.
Neil
Dan, in the world of violence outside of the workplace, traditionally, if there was violence going on against my person, I could seek a temporary restraining order, A TRO, put a stop to it, make that person stay so far away from me. That was outside the workplace. Now there’s been a change that we have to be able to accommodate things. As an employer, what is the change in harassment and how is it different from an employer’s perspective?
Dan
Well, there’s always been the civic code, I think Section 48 or right around the unrest Civil Rights Act that has allowed you to do certain things. Sure. But law enforcement’s tied to TROs. They can’t act against somebody who’s harassing another person until a judge says, you’re the bad guy. Don’t do that anymore. So now when you have a place of work and you have someone who’s just being a jerk calling you names and doing things, there’s just more law that allows a judge to say, okay, while you’re at work, I want you to stay so many feet away from this person or don’t communicate, or things like that. And because it’s not starting until 2025, I’m hoping there’ll be a lot more guidelines to tell a judge, how do you have a TRO when you have five people in an office
Neil
That are 20 feet apart,
Dan
Right? I mean, how do you have that and how do you prove it? Who said what? I mean, they’re all going to lie. They have a department downtown, and in most courthouses in the United States and in especially California, where they handle civil harassment, they call it, and they have forms the county can give you and there’ll be more forms, and employers will probably be called on to be witnesses and also will also be probably sued under the Workplace Violence Protection Act. So more to come,
Neil
But be aware that this is coming.
Dan
Be aware this is coming and don’t do anything that would make it seem like you’re saying it’s not possible for, there’s nothing I can do. Because these laws are trying to say, as an employer, you have to have answers to what can I do? And we’ll help you with that on what you can say and what you can’t say because they’re both your employees or there’s a vendor or things like that. So those things are covered in our policy manuals we do for clients, and then we customize ’em for different types of industries. And if you’re in the industrial manufacturing business, I mean, you don’t want the same employee manual code of conduct as you do when you’re running some type of healthcare clinic. Those are going to be a little different.
Neil
Things evolve and things change. And I guess the point in this whole discussion from an employer’s point of view is there’s nothing we can do about that, except we must be aware of it. We must implement appropriate changes because the balance of power continues to be changed against our interest. So it’s in our interest to pay attention and do our best to mitigate what we can to prevent things from getting out of hand. One interesting change.
Neil
Dan California changed our laws so we could grow pot here, but there’s been a substantial change in how employees can make use of cannabis when they’re not at work. That’s a pretty stark change. What changed in this area?
Dan
Well, it just keeps changing in one direction, doesn’t it?
Neil
Yep.
Dan
Pretty soon that you won’t be able to get upset with people showing up just completely wasted, I hope not on whatever drug or substance they want to be on. But right now, these are things that you have to be careful when you question whether their job performance is being affected because they were out till four in the morning smoking pot. I guess you can say something about alcohol still, but pot is even more protected than alcohol. So whatever you do, I mean, there’s people getting thrown in jail for whippets. I just heard about that one the other day. I did too. So there’s all kinds of things going on, and since we’re a union driven state, there’s always going to be more and more laws trying to protect employees to do whatever they want at your place of business.
Dan
And so if you’re going to fire somebody, give us a call because we can tell you, you’ll have a host of 10 reasons why you want to let ’em go, and we can say, look, these ones you can’t fire ’em for. But these ones definitely, so give us a call. We’ll tell you how you should be training your staff on whether you let people go or don’t let the people go, and the good reasons and the bad reasons. So if you have a drug test policy in place right now that prohibits the use of cannabis, you’re going to have to take a look at your policies, and you may have to change what you’re testing for and how it’s applied, and then what’s enforceable as an employer based on what they’re doing off the clock. It’s not that simple because that’s what the law says.
Dan
However, this is a conflict of law situation. We have a federal law and we have a state law, and you have lots of clients and employers here that we represent that do work for the federal government, and they don’t want people who smoke pot all the time working on their battleships software code to launch ships and stuff. They don’t want that. And they have a right as a federal government to preempt the state laws. But can you still get in trouble with the state? So you need custom policies for custom types of businesses. Every business is a little different. Your surgeon shouldn’t be able to show up with all kinds of marijuana in their system. There’s rules on that too for their license and for your bill of rights as a patient. There’s all types of laws that conflict together. And so if you have a question, if you have a doubt, or you just want some solid policies, here’s the thing that’s really important.
Dan
If you got a policy from your lawyer who read the law for you and helped you with a policy so you could train your employees and then you get sued anyways, which is going to happen, you get to say as a defense, well, my lawyer told me to do that. Here it is in writing. And that’s a defense to your intent to damage that person’s rights. Yes, I did not have an intent. This is what the lawyer told me to do. I have it in writing. So no, you can’t use that as evidence of me being discriminatory or having procedures in place that are taking away their protected rights.
And don’t ask them if they are using drugs or whatever. You can’t. There are questions that you ask, how does that apply to a criminal background check?
Neil
There have been some changes in what we can do as employers regarding how much time has passed and the types of offenses, what’s changed in the world of background checks, Dan
Dan
We’ve been advising clients about this for a couple of years now. You can’t ask somebody for a right to review their criminal background before you decide that you’re going to hire ’em. So there’s timing on this one. You can’t just ask for every single person’s criminal background that you interview. Those Ergon, the rules been confused for a year or two now, but now it’s in statute form in a stronger statute. So you’ve got to be really careful about criminal background searches when you do ’em, how you do ’em, and how you evaluate them. If you have a procedure in place that you got from your lawyer and you follow that in compliance with this, then guess what? You have a defensible position. Your position is based on your interpretation of the law and your lawyer’s legal opinion. So maybe you didn’t intend to violate anyone’s rights.
Neil
So what awareness would you suggest they have about questions they can ask? And specifically as it applies to doing a background check, if you’ve raised, if something has raised the suspicions,
Dan
Two things. One is the technical legal thing that you should comply with the timing of when you do the background check. Yes, which can be heartbreaking because you’ve spent all this time and now we find out they just got out of jail for murder, right?
Or software theft, and this guy’s your software guy, you’re like, oh, man, I wish it didn’t happen. But then again, on top of that, as a law firm that’s been doing this for 40 years and advising employers, there’s a practical approach.
Two, we can talk to you about the law and talk to you about what procedures other employers use to not get hurt by the law and also get the best candidates as employees while doing background checks and evaluating the things that you have here. You have to have these steps outlined, and we’ll help you do that, and then you can decide which factors you want in your overall outline in evaluating employees.
Neil
Great. All right, Dan, another wonderful thing coming hot off the press is this SB 525 dealing with healthcare workers because we’re not paying enough for various professionals. But there’s two questions here that I really have. Tell me about who this applies to and how much an hour, and then also what happens when you have a blended situation like a professional company with an MSO?
Dan
There you go. Good question. And can’t wait for the answer. No, this is intended to apply broadly, but it’s got a lot of different classifications
Neil
On moving pieces.
Dan
Oh, yeah. So for example, your large hospitals are going to be a different price. You’re going to be making 23, 20 $4 an hour minimum for everybody in the hospital, and you’re going to be making 3.5 annual increase for that. Primary care facilities are at 21 and then 24, and then 22 bucks a couple of years later, and 25 by year 2027.
Neil
Wow. So Dan, right now, this change seems to apply to larger facilities, 25 physicians or more, but you and I both know the way California works. This is going to come downhill quick. So what are the strategies that we need to take away from here and what are some of the things we need to be thinking about if we’re employers in the healthcare industry?
Dan
Well, think about this. If 80% of your healthcare workers are making minimum 22, 23 bucks an hour, you’re going to have a hard time finding people to work for you if you’re not paying that much too. So it applies to everybody, practically speaking, not technically, but yeah, that’s it. You’re going to be paying this much money. And janitors, groundskeepers, gardeners, housekeeping cooks, everyone, they’re all getting this minimum wage. I don’t think the health insurance industry likes it, and I’m sure employers won’t like it when their premiums go up that they got to pay for all their employees and for everyone else who’s got to pay more on insurance. So it’s going to be interesting to see what happens. Everyone says, we’re fighting the inflation, but it doesn’t seem like we’re doing it here in California.
Neil
So that goes back to the question of do they need to stay in touch with us? Because if it’s possible to shift that labor to another entity.
Dan
Yeah, MSOs,
Neil
Right? MSOs,
Dan
We represent thousands of healthcare companies over the last, I mean currently and tens of thousands over the last 30 years. And yet we do a lot of MSO work. And that’s a good question. The way the law is written, I don’t know. I mean, it depends on what you’re doing. It’s written really broad, so it looks like it’s intended to cover everything possible, but the courts will decide. And so this will be a case by case basis on type of MSO and to be honest, whether it’s necessary to approach it and having more than one MSO, having multiple companies or structuring things a little differently, that’ll be between you, your lawyer, and your CPA and analyzing the cost benefit of how you structure things. And that’s what we do.
Neil
Absolutely. So Dan 2024 is like any other year in California, there are a host of new things that have come down the channel, and we’re just encouraging our clients to stay in touch with us if they have questions to reach out, make contact with the Watkins firm and with our paralegals. And the most important thing is this isn’t as something that you can stick your head in the ground and hope it’s going to pass by. These are things that we really need to embrace as employers.
Dan
Correct.
Neil
Thank you, Dan.
Dan
Thank you. You can learn more about the Watkins firm at https://watkinsfirm.com or call our office at (858) 535-1511.