CalNeva Law Podcast

Today's special guest is Ryan Lyle from IRI Consultants. Ryan has extensive experience in union representation and they have invited him today to talk about current developments for employers on the National Labor Relations Board. Jared shares his own experience and key takeaways from a recent successful union election. Ryan also discusses topics that will help employers better understand the latest trends happening within the union and shares how he believes workforces will be unionized in the future.

Highlights:

• What is the National Labor Relations Board (NLRB)?
• The NLRB has two main areas of responsibility: run union representation elections and administer unfair labor practice charges.
• Ryan provides an overview of how a union election works in the U.S.
• He shares what happens in a worst-case scenario when an employer gets surprised by a petition for an election.
• Ryan also talks about the mandatory meetings that cover the educational aspects of having a union.
• Jared shares the process they went through and some of the lessons they learned from the recent union election they had in Nevada.
• To persuade the employees to vote against the union, Jared talks about captive audience meetings and explains why they were critical in their communications.
• In August 2021, then newly-appointed general counsel of the board, Jennifer Russo released a public memo. Ryan continues to share what it was.
• Ryan disagrees that captive audience meetings are implicit or implied threats. He explains why.
• He shares there is now an emphasis on the NLRB making rule changes based on case law and administration. Ryan provides some examples.
• One of the ways that a union can organize in a workplace is to get authorization cards signed. Ryan shares what the changes will be if the new law passes.
• Brett and Jared share their thoughts on the potential, significant changes explained by Ryan.
• Brett summarizes the key takeaways from today's discussion: assess the risk early, don't make assumptions, and be proactive in your communications.

Resources:

Suttonhague.com

Calnevalaw.com

Iriconsultants.com

Brett Sutton and Jared Hague talk about the recent developments that have happened regarding the AB-51 mandatory arbitration agreement law. Brett first dives in by giving a simple overview of what an arbitration agreement is, how it works, and some of its pros and cons. After, Jared steps in to explain the upcoming legal changes happening within the law and what employers need to know going forward.

Highlights:

• What do employers need to know about mandatory arbitration agreements?
• The laws can change on any of this information provided today. Before taking action, seek legal counsel for your unique situation.
• A quick overview of workplace arbitration agreements.
• All things being equal, employers want to be in front of a trained arbitrator vs. a jury.
• A huge benefit for California employers is that they can include a class-action waiver in their arbitration agreements.
• If you're in an industry that's not popular with the public, like chemicals or oil, then it's even more important to favor an arbitration agreement.
• What are some of the disadvantages of an arbitration agreement?
• There's been pushback by certain advocacy groups saying that an arbitration agreement is not fair.
• Jared steps in and explains what have been some of the latest developments happening in this space.
• Let's take a quick look at why the Federal Arbitration Act was created in the first place.
• What's the biggest takeaway that you need to know about AB-51?
• You can't incentivize your employee in any way nor fire him/her if they don't want to sign an arbitration agreement.
• What happens to you if you violate AB-51?
• When should you ask someone to sign an arbitration agreement?
• What are some of the best ways to protect yourself from a potential lawsuit? Brett and Jared weigh in with their thoughts.

Resources:

Suttonhague.com

Calnevalaw.com

Brett Sutton and Jared Hague sit down to discuss the recent ruling in the Supreme Court of California on the Donohue vs. AMN case and how it might affect employers in the future. In the State of California, they take their meal and rest breaks seriously, and if employers fail to comply, they can risk multi-millions in lawsuits. Brett and Jared share their thoughts on what all this might mean and provide a little bit of clarity on how employers can prevent this from happening to them in this week's episode.

Highlights:

• Let's do a quick review on what the basic meal period and rest rules are currently under California law.
• For other states, the meal period is incredibly flexible, but for California, it is very strict.
• What's behind the 2012 Brinker case?
• What are the definitions of a rest period?
• A recent Supreme Court of California ruling could change all of this.
• What do you need to know about the 2021 Donohue vs. AMN Services case?
• Despite the software rounding up and down on employees' lunch breaks, it appeared that employees were taking on average a 45-minute lunch break.
• Can employers properly round time punches for meal periods?
• It's every employer's duty to maintain accurate records. This means you need to prove that the employee did not waive their opportunity for a full 30-minute break.
• Brett and Jared take turns talking about some of the lessons they learned on the case.
• You need to be very careful with your meal and rest policies. The handbooks you have might very well be wrong or out to date.
• It's going to be harder and harder to overcome non-compliant meal period time punches.
• Make sure your timekeeping technology isn't "rounding up."
• What kind of evidence or statement should you include in your meal periods, going forward?
• If the court determines your records are unreliable, they're going to get thrown out and it's going to cost you big.
• When does it make sense to offer an individualized settlement agreement?
• It might be time to consider a severance program.

Resources:

Suttonhague.com

Calnevalaw.com

Sba.gov/ppp

Brett Sutton is joined by Joe Amato, the District Director at the Small Business Administration to discuss the latest updates in the Paycheck Protection Program and answers the attendee's live questions. After that, Scott, a CPA based in Nevada, will discuss what you need to be aware of when trying to file your Federal loan tax credit for last year, and other tax info you need to consider. All the proceeds of this webinar will be going to the food bank of Northern Nevada.

Highlights:

• What do we need to know about the second draw of PPP?
• Every application for PPP must be in before March 31st.
• The eligible expenses for PPP have changed.
• How are you eligible for a second draw?
• If you have a 25% or greater loss in revenue, you're eligible.
• For PPP1 you need to be at 500 employees or less and for PPP2 you need to be at 300 employees or less.
• Do you have to apply for forgiveness in order to get a PPP second draw?
• Is your PPP taxable by the IRS?
• Do you have to use the same lender? The answer is no!
• Best places to contact a lender?
• Joe answers some pending questions!
• The whole idea of PPP is you get a fully-forgiven loan.
• It was unrealistic for the IRS to not let you deduct your expenses from a PPP loan.
• Applied for PPP and haven't heard back?
• Scott takes the stage to discuss the Federal loan tax credit.
• How do you consider sick leave?
• There are special rules for the self-employed.
• Remote schooling? You might qualify for medical leave.
• You have delayed payment of your employee payroll taxes.
• What do you need to know about the PPP flexibility act?
• Make sure your bookkeepers are using the right credit and going through this manually! Some software is not automatically calculating this.
• The IRS is behind, but they will still be checking on these tax returns.
• With the PPP proceeds, are they tax-exempt income or are they capital contributions? This is tricky and we still need more clarification on this.
• Scott answers some questions!
• Should you keep your doctor's notes to prove you have a legitimate request for medical leave?

Resources:

Suttonhague.com

Calnevalaw.com

Sba.gov/ppp

Email Joe: [email protected]

Brett Sutton and Jared Hague are joined by OSHA veteran James Boretti to discuss the new Cal/OSHA Emergency Regulations. James comes with over 33 years of experience and knows the ins and outs of OSHA compliance. In this webinar, you'll learn what you need to know when it comes to an exposed risk of COVID-19 in the workplace, what is still pending clarification, and best practices to put in a prevention program. Stay till the end, where Brett, Jared, and James answer questions live from the participating audience.

Highlights:

• Brett shares some resources that you can use in regards to the employee handbook and COVID-19 on their website.
• A bit about James and his expertise.
• What do people need to know about the new Cal/OSHA Emergency Regulations?
• Do these new regulations apply to your business? Universally, it's going to be a yes.
• Jame shares what the Aerosol Transmissible Diseases (ATD) is about and who it applies to.
• Employers need to establish and implement a COVID-19 Prevention Program (CPP).
• What is considered a COVID-19 case?
• You will probably need additional help to complete and implement the CPP.
• What notices do you have to provide? You have to give notice about potential COVID-19 exposure within one business day.
• What type of training do you have to provide for your employees?
• What is considered a "high-risk" exposure?
• Are employees entitled to paid leave?
• When can employees apply for unemployment?
• Is there a pay limit under the emergency standards as of right now? The answer is no.
• How do you determine whether COVID-19 exposure was work-related? What documentation do you need?
• What's the protocol on how to notify people who have potentially been exposed to the virus?
• Contact tracing in the workplace is critical, but do you put it on the reportable or the OSHA log 300?
• The fine for not reporting within an 8-hour period is $5,000.
• There are actually two definitions of "outbreak," depending on which guidelines you look under.
• Can an employer require their staff to be vaccinated?
• Brett, James, and Jared answer some of your burning questions!
• You do have to let your staff know within one business day that someone on the team has been exposed to COVID-19.
• If an employee is quarantining at home, do you still need to inform your staff about the recent exposure?
• What testing can you ask your employees to bring in before they go back to work?
• What kind of information should you have on hand and ready to provide the health department if an outbreak were to occur?
• Unfortunately, you're getting guidance and regulations from three different sources, so the information you need can be conflicting.

Resources:

Suttonhague.com

Calnevalaw.com

Borettiinc.com

Brett Sutton is joined by two members of his team, Sandra Lepson and Evelin Bailey, to discuss the upcoming changes to CFRA and what employers need to know about the new SB-1383 expansion. The team also dives into FMLA and how this will be adjusted/used in combination with these new CFRA changes. There's a lot to cover in this week's podcast, so let's jump right in.

Highlights:

• What is the current CFRA law?
• A covered employer has to have 50 or more employees under the CFRA and Family and Medical Leave Act (FMLA).
• Who is an eligible employee under CFRA vs. FMLA?
• What are some qualifying reasons an employee can take leave?
• How does military leave apply under the FMLA?
• A family member can leave for up to 26 workweeks to care for an injured military member. This is unpaid, but it is job-protected leave.
• Evelin shares what leave is available under California law vs. Federal law.
• What are the upcoming CFRA changes and whom will they impact?
• Brett weighs in on what he's seen when it comes to layoffs during the pandemic.
• The definition of family member is changing.
• Employees can take on the care of the elderly grandparent for up to 12 workweeks and they'd still be eligible for personal leave for up to 24 workweeks. This is where things get complicated.
• Parental leave laws and how they're changing in 2021.
• What happens if the CEO or an executive member needs to take leave?
• Any employer with five or more employees has to comply with the pregnancy disability leave law.
• Your employee handbook needs to be updated!
• Make sure you designate the leave in writing!
• What is the max potential for taking leave? Your employee could technically be out on leave for 56 workweeks.
• What questions should you ask your employee before they take their leave?
• Things to think about when it comes to the health insurance benefits.
• Regulations are still being ironed out, which means you have to check in with your employment counsel for the latest updates.

Resources:

Suttonhague.com

Calnevalaw.com

In this webinar, Brett and team answer what employers need to be aware of if their staff works between California and Nevada state lines. When it comes to overtime or even wage and hour laws, what should they be aware of? How do you calculate vacation pay? They also answer the important question of when it makes sense to create an arbitration agreement! All this and more in today's episode.

Highlights:

• Please subscribe to this podcast! It helps out the show!
• Today's topic will dive into which laws apply when you cross state lines.
• What do you need to know about Labor Code 226?
• If an employee works more than 10 hours a day in California, they need to have a total of two 30-minute meal times. How does this differ in Nevada?
• If you fail to comply with some of these regulations, it could cost you over a million dollars in penalties!
• The difference between alternative workweek schedules in Nevada and California.
• What law do you need to follow if workers are working across state lines?
• What do you do if an employee works five hours in Nevada and five hours in California on the same day?
• What's the difference between Labor Code 224 and 226? And how do you know which applies?
• California is very protective of its employees.
• If you're coming into California and working a majority of your time in that state, then you're subjected to California laws.
• What do you need to know about minimum wage and overtime if an employee works across state lines?
• There is a ripple effort on a wage and hour violation that you must be careful of.
• What is your risk tolerance? Are you dealing with just one employee or hundreds of employees?
• What do you do about vacation pay?
• When does it make sense to bring in an arbitration agreement?
• Q&A Session.
• If you're a Nevada-based employer, but your employee is working from home in California, what should you do?
• Does a Nevada employer have to worry about where their employee's residence is?

Resources:

Suttonhague.com

Calnevalaw.com

Sutton Hague staff Sandra Lepson and Evelin Bailey have some updated information as to what California and Nevada employers should do if one of their staff has tested positive for COVID-19 or has been exposed to COVID-19 by a family member. Everything from how you ask them for the COVID-19 tests, what type of sick leave does this fall under, and how to conduct proper contact tracing are outlined in this week's episode.

Highlights:

• Sandra and Evelin have been getting a lot of questions about how to navigate COVID-19 issues.
• What kinds of questions are employers allowed to ask employees?
• What should you do if an employee tests positive for COVID-19?
• How do you keep third-party (contractors) safe from an outbreak?
• Reach out to your health department and work closely with each other.
• The rules are constantly changing.
• What are the current reopening protocols for California?
• If an employee tests positive, what's the first thing an employer should do?
• What leave does the employee qualify under if they are COVID-19 positive?
• What do Nevada employers have to consider?
• What documentation do employers need to request from their employees?
• When can a sick employee return to work?
• It's important to do a contact trace and reach out to your employees privately to let them know about a potential exposure.
• What happens if an employee has symptoms but has not yet tested positive for COVID-19?
• What do employees need to be aware of if they test positive for COVID-19?
• If someone is out sick and capable of working, and if the job allows them to work remotely, then it would not be considered sick leave.
• You need to reach out to your county health department if you have three or more infected employees.
• What happens if an employee tells you their spouse tested positive or they were in contact with an infected person?
• What is defined as an outbreak and how is 'close contact' defined?
• Be very careful in what you ask an employee when it comes to their medical history.
• Use your health department as your ally. Hiring a certified safety professional can save you tons of cash in the long run.

Resources:

Suttonhague.com

Calnevalaw.com

Sutton Hague staff Sandra Lepson and Evelin Bailey discuss what employers need to know about the California Consumer Privacy Act (CCPA). The CCPA doesn't apply to everybody, but it goes into effect in 2020, and the penalties are harsh if you do not comply. Both Evelin and Sandra give an overview of what the CCPA is, why it's important, and why employers are worried about it.

Highlights:

• If you enjoy this podcast, please rate and review us!
• Also, feel free to visit our website for more helpful information.
• What is the CCPA and why is it an important topic?
• Why are CCPA and AB25 important right now?
• Who does the CCPA apply to? There are three criteria if it applies to you.
• Important to consult with your proper legal counsel because the penalties are harsh!
• Employers are worried because this law can be a bit broad. Sandra explains what employers need to know and the best ways to proceed.
• If a business doesn't give the employee notice at the point of data collection, the business shall not collect personal information. How does that apply to job applications?
• Employers need to review their privacy policies.
• What does the CCPA require from you?
• Do you have to start encrypting all of your emails? Quite possibly, yes.
• Talk to your IT person or an IT security specialist on how to best become compliant with CCPA regulations.
• Why should you care about the CCPA? It's going to be very, very costly if you don't comply.
• The attorney general is not going to bring any action until July 1st.
• You need to make a good faith effort to try and comply. You have 30 days to do so. The penalties will be less, but if you don't even try to put regulations in place, the penalties will be so much more.
• If you have 1,000 employees and you 'intentionally' violate these regulations, you could be on the hook for $7.5 million.
• Take action on this as soon as possible. Reach out to your lawyers.
• How can employers move forward on this?
• Sandra Lepson and Evelin Bailey offer some final words of advice for employers.

Resources:

Suttonhague.com

Calnevalaw.com

Robert W. Wood is a Tax Attorney with more than 40 years of experience in his field. He has written more than 30 books on the subject of taxes and also writes regular columns for Forbes.com. When it comes to the PPP and taxes, there's been some confusion on how business owners should classify this money on their tax return. Robert weighs in on the subject and what you need to be aware of coming in 2021.

Highlights:

• What is PPP?
• Who can apply and should apply for the PPP?
• Can the employer use the loan for whatever they want in their business? The complex answer is yes.
• If you do get the loan, put it in a separate account so you can accurately track where the money went.
• Originally, you had to spend 75% of the money on payroll. However, that has changed.
• How do you get your loan forgiven?
• Roberto clarifies a tax distinction between whether the PPP is counted as income or as a loan, and what to do when tax season comes around.
• The tax question everyone is asking: is the PPP money tax-deductible?
• Congress and IRS are in disagreement with how the PPP money should be deducted and whether businesses get the double tax benefit or not.
• What's the best way to allocate the PPP money over the next 24-week period? Should it all go to payroll? Robert weighs in.
• If you don't have your loan forgiven, you may have to pay the loan back at a 1% interest rate within five years.
• Robert's final thoughts: Don't get frustrated. It's a challenging law everyone is navigating through.

Resources:

Woodllp.com

Have questions for Robert? Call him at 415-834-1800

Robert's Forbes author page: Forbes.com/sites/robertwood/#7b18431072de