Minimum Wage Increases in 2011

Arizona Voters Approve Medical Marijuana 

 Minimum Wage Increases in 2011 

ARIZONA MINIMUM WAGE INCREASE: 
 
Effective January 1, 2011, the Arizona Minimum Wage will increase from $7.25 to $7.35 per hour. There is also a new poster required, stating the new minimum wage; click here for more information and to download the new poster. To see a copy of the resolution authorizing the increase, click here.
 
The Arizona Minimum Wage Act, which became Arizona law on January 1, 2007, authorized the Industrial Commission of Arizona (ICA) to implement an increase in minimum wage on January 1 of successive years according to the increase in the cost of living.
 
According to ICA guidance, employers covered under the Act must pay every employee at least the minimum wage amount. Thus, Arizona does not provide sub-minimum wages for different classes of workers, such as young workers or students. Note that this is different, and more restrictive, than the Fair Labor Standards Act (FLSA). The Act provides a narrow exception for small businesses that are not subject to the FLSA and which have less than $500,000 in gross annual revenue. Also excluded are the state of Arizona and the U.S. government.
 
The Act includes a separate provision for employees who customarily and regularly receive tips or gratuities from patrons. For employees falling in this category, the employer may pay up to $3.00 less per hour than the minimum wage if the employer can establish that the employee received not less than the minimum wage. To establish that the employee received the minimum wage, the employer must maintain a record of the tips considered and the amount per hour that the employer takes as a tip credit must be reported to the employee, in writing, each work week. If the employee is receiving less than the minimum wage, the employer must make up the difference.
 
Additionally, employers must maintain records showing the hours worked for each day worked, and the wages paid to all employees for a period of four years. Employers are required to post the Arizona Minimum Wage Poster in an area where employees can read the poster.
 
Source: Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
 
OHIO MIMIMUM WAGE INCREASE
 
The Ohio minimum wage will increase by 10 cents on January 1, 2011 from $7.30 to $7.40 per hour, according to Director Kimberly Zurz of the Ohio Department of Commerce. This rate is 15 cents per hour higher than the federal minimum wage, and applies to employers in Ohio whose annual revenue is $271,000 or more. 
 
This change means that every Ohio employer must update labor law posters, including the state minimum wage poster. The Ohio minimum wage was unchanged from August 2009 to January 2011, remaining at $7.30 per hour for 17 months. 
 
Not every employer is covered by the Ohio minimum wage increase, according to the Division of Industrial Compliance & Labor. Employers with annual revenue of less than $271,000 in 2011 can pay workers just $7.25 per hour. In addition, any Ohio employer can pay workers who are 14 or 15 years old $7.25 per hour. These rates are pegged at the federal minimum wage and are unchanged since July 2008. 
 
The Ohio minimum wage for tipped employees will increase by 5 cents from $3.65 to $3.70 per hour. Tipped employees in Ohio are entitled to at least $7.40 per hour in tips and wages combined. If the tipped employee does not average $7.40 per hour worked over the payroll week, the Ohio employer must pay the difference as wages.
 
Source: LaborLawCenter.com
 
MONTANA MINIMUM WAGE INCREASE:
  
This rate is automatically adjusted annually based on the U.S. Consumer Price Index. Tip income may not be applied as an offset to an employee's pay rate. The minimum pay is $4/hour for a business with less than $110,000 in annual sales. The indexed minimum wage will increase 10 cents to $7.35 per hour on January 1, 2011.
 
SAN FRANCISCO CITY/COUNTY MINIMUM WAGE INCREASE: 
 
Minimum Wage in the City/County of San Francisco will increase to $9.79 per hour beginning January 1, 2011. San Francisco's indexed minimum wage will increase to $9.92 on January 1, 2011.
 
VERMONT MINIMUM WAGE INCREASE:
 
The Vermont minimum wage will increase from $8.06 to $8.15 per hour on January 1, 2011. The 9 cent per hour increase is the first since January 1, 2009. This change will require that every Vermont employer update his or her labor law posters. 
 
The Vermont tipped minimum wage increases by 5 cents in 2011, from $4.15 to $4.20 per hour. Under the state law, employees of a hotel, motel, restaurant or tourist place who regularly earn more than $120 per month in tips can be paid tipped minimum wage. However, if the employee’s wages plus tips do not average at least $8.15 per hour for the payroll week, the employer must pay the employee the difference. 
 
OREGON & WASHINGTON MINIMUM WAGE INCREASE:
 
The Oregon minimum wage will increase by 10 cents per hour from $8.40 to $8.50 on January 1, 2011. Labor Commissioner Brad Avakian recently announced the increase based on a 1.15% increase in the Consumer Price Index for the year ending September 1, 2010. 
 
Unlike many other states, Oregon does not have a tipped minimum wage. Tipped employees are entitled to the full state minimum wage of $8.50 per hour. 
 
This is the first increase in the Oregon minimum wage since January 1, 2009. This change means that Oregon maintains the second-highest minimum wage in the nation in 2011. The highest minimum wage is in neighboring Washington state, where the current rate of $8.55 will increase to $8.67 in 2011. Every Oregon employer needs to update the state minimum wage and employment posters to reflect this change. 
 
NOTE FROM MJMS: If your state is not listed here, check out the list of all states here: http://en.wikipedia.org/wiki/List_of_U.S._minimum_wages

Meal and Rest Breaks - Provide or Ensure?

In the event our CA readers are not aware, the outcome of these cases may be good news:

California Court of Appeal Holds Employers Are Only Required to Provide Meal & Rest Breaks

As we previously reported to you, two cases presently before the Supreme Court (Brinker Restaurant v. S. C., review granted Oct. 22, 2008, S166350, and Brinkley v. Public Storage, review granted Jan. 14, 2009, S168806) will address whether employers are required to ensure that meal and rest periods are taken or only required to provide them.

As we wait for the California Supreme Court to decide this issue, in Hernandez v. Chipotle Mexican Grill, Inc. (No. B216004) the California Court of Appeal (Second Dist., Div. Eight) affirmed the trial court's denial of plaintiff's motion for class certification holding that: 

Because of the “sensitivity” of the break issue, we can only assume that Hernandez will petition the California Supreme Court for review – which will most likely be granted and held pending a decision in Brinker…

Source: Nossaman LLP. Copyright © 2010 All rights reserved. 
 
NOTE FROM MJMS: While we wait for the outcome of these cases, best practices suggest that CA employers:

	Have and communicate a clear policy providing for meal and rest breaks, educate employees about the policy and enforce it consistently.
	Have employees record and acknowledge that they have taken their meal and rest breaks.
	Encourage, and do not impede, discourage, or dissuade, your employees to take meal and rest breaks.
	Make sure that the meal breaks are taken before the start of the fifth hour of work.
	Make sure that the employees take a full thirty (30) minutes at the minimum.
	If an employee has to work during the meal period, have them sign a waiver acknowledging that the nature of the employee's work prevented him or her from being relieved of all duty and pay them for the time worked.
	Have a policy that all employees are to record all time worked and subject to termination if they fail to comply.

If you have questions about meal and rest breaks, be sure to contact us: margaret@mjms.net or 310-798-4569 (CA)

Arizona Voters Approve Medical Marijuana

The passage of Proposition 203 makes Arizona the 15th state to legalize medical marijuana. Under the Arizona Medical Marijuana Act (the "Act"), the State now has 120 days to draft regulations that will give additional guidance regarding the use and distribution of medical marijuana, which is not expected to be available until around April 2011.

The passage of Proposition 203 will bring significant changes to Arizona employers by spring of 2011, as the Act creates a new protected status for employees and applicants in the workplace -- that of the registered medical marijuana ID cardholder. The new law specifically prohibits discrimination based on cardholder status, which includes not only marijuana-using patients but also their caregivers and dispensary agents. Further, employers will need to revisit existing drug-testing policies.

Issues for Employers:

Non-Discrimination Against Users: The Act presents several issues and concerns for employers. The Act prohibits employers from discriminating in "hiring, termination or imposing any term or condition of employment or otherwise penalize a person" based upon the person's status as a cardholder or a drug test that detects marijuana. Nevertheless, employers may discipline employees who used, possessed or were impaired by marijuana while at work or during work hours.

Employers should revise their employment policy manuals, specifically the drug testing policies, to make those provisions consistent with the potential use of medical marijuana. Most Labor Law attorneys are available to review and conform drug testing policies. Employers with drivers with commercial driver's licenses or who are subject to Department of Transportation or other federal drug statutes and regulations, should have counsel review those policies as well to harmonize them with the Arizona Act. The federal laws and regulations will take priority over the Arizona Act.

Sources: The Cavanaugh Law Firm and HRHero.com

NOTE FROM MJMS: As more information about Employer responsibilities becomes available, we will report here. In the meantime, if you have questions about your current policies and practices, please contact us.

On to our feature article ....

Performance Reviews

December and January are the popular months for conducting employee performance reviews. Are you prepared? Here are some tips for
 
What you should absolutely, positively NOT say in a performance review
 
Say you manage Kevin, a 55-year-old employee whose productivity drops over the year. Instead of citing specific, measurable examples of this decline in his performance review, you note that "Kevin doesn't seem to have the energy level anymore to truly succeed in this department." Still, you rate Kevin's work as "average," the same as last year.
 
That example highlights two of the more common - and legally dangerous - pitfalls in writing performance reviews:

1. Evaluating attitude, not performance. Vague statements that attack an employee's demeanor could be interpreted as some kind of illegal age, race, gender or disability discrimination. Instead, supervisors should use concrete, job-based examples to illustrate any criticism. 

In the example above, referring to Kevin's "energy level" could give him reason to complain about age discrimination. Instead, the review should have cited examples such as, "Kevin has completed three of the five major projects late this quarter and has not contributed one new product idea in six months."

For this reason, the word "attitude" should never appear in a review. Employment lawyers and courts often see that as a code word for discrimination.

2. Evaluation inflation. Supervisors too often rate mediocre employees as competent, competent employees as above average and above-average employees as superior. The problem comes when an employee is fired for poor performance yet his/her history of reviews tells a different story. The employee, then, has a supposed proof that the real reason for the firing was something else, maybe something illegal.
 
You think you're being gentle, but you could be doing more harm than good. Could your soft heart torpedo your career?
 
Here are the main causes of evaluation inflation. Do any sound familiar to you?

	Misinterpreting a rating scale or instructions Example: Using a review with a 0-4 rating scale, a supervisor gives an employee a "2" in attendance and fires her. She sues, arguing that a "2" is average and acceptable, and wins. The supervisor wrongly believed that anything less than a "4" rating was unacceptable.
	Fear of confronting employees.  Example: A worker has acceptable work quality but hurts morale because of poor teamwork and pushiness. To avoid an angry confrontation, the boss rates the employee as average in soft skills.
	Giving positive areas too much weight over negative ones.  Example: You rate a factory worker on quality, quantity, dependability, teamwork and safety. Quality is poor, but you rate it average because of the "glow" from the other categories, all rated above average.

Final Tip: 
To determine if you inflate reviews, ask yourself the following questions: 

Source: Capitol Information Group (CIG). Copyright 2010 All rights reserved.

NOTE FROM MJMS: Are you prepared to conduct a review of your employees? If you don’t have review forms or are unsure of the process to follow, check out our “Performance Appraisal Packet” here.

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President and Principal Consultant: Margaret Jacoby, SPHR

Margaret Jacoby has more than 25 years of Human Resources and professional management experience in a variety of industries. She has designed human resources infrastructure and implemented systems to ensure compliance with state and federal employment laws. She has directed high quality human resources functions for small and emerging businesses, and served as an external consultant to a wide range of erse organizations, including non-profits.

Her work has included:

• Conducting H.R. Needs Assessments

• Drafting employee handbooks and policy manuals

• Conducting job analysis and developing position descriptions

• Conducting on-site compliance audits

• Counseling management on progressive discipline

• Drafting and review of employee disciplinary actions

• Providing mediation in employee/employee conflict

• Training employees/supervisors/managers in the implementation of human resources systems and policies such as Sexual Harassment

• Conducting workshops for business owners on H.R. compliance issues.

Ms. Jacoby has earned the nationally-recognized certification of Senior Professional in Human Resources (SPHR) from the HR Certification Institute, Society for Human Resource Management (SHRM).

Ms. Jacoby’s professional affiliations include:

• Professionals in Human Resources Association (PIHRA)

• Society for Human Resource Management (SHRM)

• National Association of Women Business Owners (NAWBO), Los Angeles and Phoenix

• California Chamber of Commerce

• Arizona Small Business Association (ASBA)

• Long Beach Community Business Network (LBCBN)

• Institute for Management Consultants (IMC)

The information contained in this newsletter is provided as general information and is not a substitute for legal or professional advice. The information is provided by MJ Management Solutions, Inc. and while we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the newsletter or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.