Companies often seem surprised when a new law goes into effect that affects them. However, governments aren’t that efficient. It takes months to review and pass a bill into law and the effective date is often several months later. It’s just a question of whether or not you were paying attention all those months to see which bills were thrown out and which were moved forward.
Timing is different when a judge has made a decision in court. A court decision will immediately change behavior and become the basis for more lawsuits. While a judge’s decision isn’t new “law,” it carries a lot of weight in future lawsuits and decisions. Generally, attorneys will immediately consider a court decision as the way things should be going forward in how we implement or maintain compliance with a law.
An example of a court decision was the California Supreme Court’s ruling on independent contractors early this year. Soon after the Court published it’s decision, new lawsuits were filed based on that ruling. As evidenced by the number of companies changing independent contractors into employees, the effect was immediate.
New laws passed have a specific effective date so we can prepare for them. A couple of examples include:
- Janitorial service registration — Effective 7/1/2018, this law requires all janitorial and cleaning companies to register with the state no later than 10/31/2018. After that date, both the company and anyone who hires them is subject to fines and penalties. There will also be special sexual harassment training required by 1/1/2019… but we’re still waiting to hear exactly what should be in the training. If you use a service, make sure you get a copy of their state registration certificate each year.
- Sexual Harassment training for small companies — Effective 1/1/2020 (yes, over a year from now), all companies with 5 or more employees must provide 2-hour sexual harassment training for supervisory staff AND 1-hour training for all non-supervisory staff. This is a huge change and a result of the me-too complaints over the past year. We’ve never had a requirement to train non-supervisory staff before. However, this isn’t a bad law because many complaints are a result of employees not understanding what harassment really is or what to do about it.
California continues to lead the charge with employment laws. It can be frustrating and an administrative burden to keep up with everything these days. Ironically, we continue to wait for court decisions to give us more direction in how to implement a law or even a prior court decision. Companies willing to accept the risks by being non-compliant need to recognize that risk increases with each new law and court decision. Let us help reduce your risks!
“I once worked at a company who followed a pattern of disciplinary actions. Now that I have my own business, I’m trying to decide if I really want to do it the same way. Are there options?”
Your HR Survival Tip
There are disciplinary options legally available and they typically fall into two categories: progressive or discretionary.
You have a progressive policy when it specifies what happens for each occurrence. For example:
- First offense = Verbal warning
- Second offense = Written warning #1
- Third offense = Written warning #2
- Fourth offense = Written warning #3
- Fifth offense = Final warning
- Sixth offense = Termination
The problem with this type of policy is that you may be legally required to follow each step, regardless of the offense. On the other hand, it does give employees sufficient warning that the behavior may lead to termination and can’t be considered discriminatory since the same six actions are used on everyone.
When you have a discretionary policy, you handle discipline in the way it suggests at the Company’s discretion. We prefer this method because there are some things an employee might do that call for immediate termination and we want that option.
Having a discretionary policy doesn’t mean you jump all over the place with your discipline. Even this method usually has a basic process you follow with verbal and written warnings. However, you also have the option of jumping over steps if the situation calls for a stronger message.
Regardless of which method you use, train your managers. The Company takes the hit for discrimination if you have managers using wildly different disciplinary behaviors. You don’t want one manager to fire someone for a no-call, no-show and have another manager simply provide a verbal warning in the same situation. You must create a Company philosophy on what you want to see used for discipline and then make sure the managers understand and use it appropriately.
“I have a couple of employees who like long lunches and sometimes take 2 hours. They still work 8 hours but do I need to let them continue this?”
Your HR Survival Tip
There are practical and legal issues to consider when looking at long lunch breaks. While California requires non-exempt (hourly) employees to take at least a 30-minute meal break, the state can frown on breaks of more than one hour.
You do not have to allow any longer than 30 minutes for meal breaks but consider allowing just slightly longer (35-40 minutes) simply because you need to make sure they take at least 30 minutes. It’s hard to take exactly 30 minutes every day unless you have a very rigid schedule.
On a practical side, even if the employees ensure they work 8 hours, do those specific 8 hours work for you? If your business hours are normally 8a-5p but these employees stay until 6p to make up for the long lunch, is that last hour as productive for the business? Probably not, if they are working with customers and there are no customers after closing.
On the legal side, if you require the employee to take more than an hour meal break because you actually need them to work that hour later, this is a split shift. California has a payroll calculation for split shifts. The cost of using split shifts is one hour of minimum wage each day it happens. However, the way it’s calculated may not cost you anything. You can apply anything over minimum wage normally paid to the employee toward that split shift pay. For example, if employees are making $13.00/hour and minimum wage is $11.00, you have a $2/hour overage you can apply to that one hour of minimum wage due. In a normal 8-hour day, the employee making $13/hour will have an overage of $16 ($2 x 8 hours) so you have covered split shift pay.
Overall, it’s best to stick with a standard meal break period and have employees request the additional time off as they need or want it. You should be allowed the opportunity to approve or deny the extra time based on the business needs that day. Remember, you’re the boss!
“My company is growing and I am curious if I will be subject to more laws.”
Your HR Survival Tip
Whether or not you’ll be subject to more laws depends on your current size. Employment laws are often connected to the number of employees you have, have had, or will have.
Some laws count all employees, others may also add consultants and temps. You should also count anyone who is actively working in the business even if they don’t receive a paycheck (like a spouse). The following list includes only the basic and most used laws so please make sure you find out what other laws may affect you.
0+ Employees = Wage Theft Prevention Act; Wage and Hour Laws (e.g., minimum wage, overtime, meal and rest breaks)
5+ Employees = The above plus Discrimination; Pregnancy Disability
15+ Employees = All the above plus American Disability Act; Organ and Bone Marrow Donor Paid Leave of Absence
20+ Employees = All the above plus New Parent Leave Act
25+ Employees = All the above plus Alcohol/Drug Rehabilitation; Domestic Violence Leave; Illiteracy Accommodation; Military Spouse Leave; School Activities Leave
50+ Employees = All the above plus Family and Medical Leaves (FMLA/CFRA); Mandatory Supervisory Sexual Harassment Training
100+ Employees = All the above plus EEO1 Reporting; Affirmative Action Plan
Growth is often a good thing but you need to look at more than just the added revenues. Knowing what you need to do to remain compliant as you grow isn’t that hard and can be very costly if you ignore the laws. Ignorance of the laws is not a defense that works.
“I’m trying to understand the amount of sick time each employee gets. Is there a simple method?”
Your HR Survival Tip
You’re in California so it will never be simple. However, it’s also not that difficult to determine if the right amount of sick leave is being provided.
First, determine which sick leave law fits your company. There is the basic state law of 24/48 (24 usable hours each plan year, 48 accrued hours). Then make sure you know which local sick leave laws apply to your employees… there are 29 localities with their own version and that number continues to grow. If an employee spends more than 2 hours in a locale with a different sick leave law, you need to use the most generous one.
Next, check your payroll system to determine how the sick leave is set up for you. Too many times, we find part-time employees accruing at a weekly rate. Nearly all payroll systems are capable of using an hourly accrual and that’s the easiest method because they only earn sick time based on actual hours worked. You can set up different plans for salaried, hourly full-time, hourly part-time, and based on locale.
You can also pull from your payroll system a report showing total hours worked by each employee for the year(s). Once you have all of the above information, it’s just math:
Total hours X accrual rate = total accrued – hours used = current balance
The current balance is subject to your policy’s (or the law’s) maximum accrual number. The most important number is how much sick leave is currently still available to the employee this plan year. Compare these numbers with what each employee has in the payroll system.
The laws change and technology has glitches. At least once each year you should review your sick leave policy and reconcile your sick leave time in the payroll system. Although employees do not receive a payout upon termination, you do want to be know you are paying sick leave when you should.
“I like to have criminal background checks run on applicants. Things have changed lately and now I’m not sure how to do it legally.”
Your HR Survival Tip
California made it more time-consuming to run background checks with the “ban the box” law that went into effect 1/1/2018. The actual process of requesting the background check is the same but everything surrounding it has changed. Below is a simplified version of the rules when including criminal history in the request:
- First, you must provide a written offer letter before conducting the background check. The letter needs to state the offer is contingent upon the results of the report.
- The candidate must sign an authorization form giving you permission to run the check.
- You must provide the candidate a copy of the report unless they have specifically waived that right in writing. The waiver is often a checkbox on the authorization form. However, if the report has information that makes you want to renege on the offer (aka adverse action), you must provide the report even if they waived.
- You cannot just blindly renege on your offer… what is on the report must relate to the position for which they were being hired, how much time has passed, and the nature and gravity of the offense or conduct. Also keep in mind that only convictions can count, not arrests.
- You must provide a written notice to the candidate intended to give them a fair chance because there can be mistakes on reports. The candidate must be given at least 5 days to respond to your notice. If the candidate disputes the report within those 5 days, you must give them another 5 days to respond.
- After the candidate has responded, you must go over all the information and then provide a written notice of your final decision. It’s best to put all factors resulting in your decision in writing for the file in case you need to provide the justification at a later date.
As mentioned, this is a very simple explanation of the process but there are many details not given here. If you conduct background checks that include criminal history, ensure your process and notices are compliant and ready to use.
“I have employees who take long bathroom breaks but I know they’re just on their phone making calls or checking social media. How can I control this?”
Your HR Survival Tip
It’s difficult to tell someone they can’t take a restroom break when asked, isn’t it? And if it was a quick trip, you wouldn’t even give it another thought. But it’s those 15-20-25 minute bathroom or rest breaks that hurt.
For better or worse, California is very specific about meal and rest breaks… when, where, and how long. This is one of those times the rules can work to your benefit. If you don’t already have a rest break policy, it’s time to let us create one for you.
Employees are allowed an uninterrupted 10-minute paid rest break when working “the greater of 4 hours.” In English, that means you might want to give them a rest break if they are working more than 2.5 hours. In a normal 8-hour workday, this means 2 rest breaks: one mid-morning and one mid-afternoon.
While you can’t control what an employees does on their rest break or where they go, you can discipline them if they start taking more than 10 minutes. Or tell them to clock out if they want a longer rest break. Remind them the rest break is intended for resting, getting something to drink or using the restroom, etc. They aren’t supposed to take their break and then stop working again to get that drink or use the restroom.
If you have employees stating they must use the restroom more often because of a medical condition, ask them to provide a doctor’s note requesting you accommodate that need. This is not an unusual request and might even qualify for unpaid time off or using sick leave if the needed breaks are reducing their work time by much.
Most people are fine working 2 hours without a break and our days are filled with 2-hour blocks of time around the rest and meal breaks. This isn’t that difficult but you do want to be consistent in applying the policy. Ask yourself if you’d still get upset if your best employee was late returning from rest breaks. The answer helps you develop a policy everyone can live with.
“I have an employee who seemingly just disappeared one day last week and I haven’t heard from him since. I’ve heard other employers have similar problems. What’s going on?”
Your HR Survival Tip
We have heard this complaint from numerous employers. It turns out there’s a name for it: ghosting!
You have been ghosted if you’ve had a job candidate who suddenly stops returning your calls and emails. Or a new hire who doesn’t actually show up for work on their first day or heads out for a break or lunch and never returns. Of course, the most common seems to be the no-show / no-call employees who decide not to come to work one day and you don’t hear from them again.
The good news, if it can be called that, is you’re not alone. The bad news is that it seems likely it will continue to happen. The causes are blamed on several things:
- Candidates are finally turning the tables and giving the silent treatment back to companies.
- The job market is so healthy that people are testing to see what they can get but it may not be the best fit so they don’t show up or just leave.
- Employees feel a lack of loyalty or obligation to the employer or their manager.
- Leaving without saying anything is a way to avoid conflict and many workers have not learned how to handle those conversations.
- Companies aren’t hiring in a way that ensures the employee truly fits the job.
Job abandonment used to be rare and companies would truly worry about that employee. However, it’s now so common that you usually just assume the employee won’t be back and start thinking through the termination. This isn’t just a generational issue so we can’t really place blame there.
What can you do? Look at your hiring practices. Are you doing enough to win that candidate in a competitive market (and to ensure they actually show up for work)? Use deadlines when making offers so you can move on more quickly. Have your supervisors develop better relationships with their direct reports so you can tell when the job fit isn’t working for the employee. Basically, pay more attention to relationships.
At the same time, look at the messages employees receive at work. Do they know what’s going on in the company so they truly feel a part in it? Your internal marketing is important and enhances employee interest and loyalty. Employees want to feel they belong and have an integral part in the company’s success. Too often, employees just show up to do their job without having any context for how it fits into the bigger picture. If you don’t want employees to ghost you, then start looking for what might really be causing it.
Companies often tend to think they will never be caught or they forget to do their full due diligence when it comes to employment law compliance. However, both state and federal agencies are working hard to catch offenders and new laws are helping them.
Various local Cheesecake Factory locations and its janitorial subcontractors were found liable by the Labor Commissioner for wage theft. This means employees were not being paid properly and in accordance with California’s Wage Theft Prevention Act. If you ever wondered why you have to complete that wage theft prevention notice for each hourly employee, this is why.
Investigators discovered the janitors were often not receiving their meal and rest breaks and were not being paid the overtime hours they typically worked. Since missed meal and rest breaks require the employee to receive penalty pay, this becomes a wage issue in addition to the overtime. The Labor Commissioner’s Office is focused on wages or other earnings due employees and helps the employees receive everything they earned.
Since it was the janitorial service with the improperly paid employees, you probably wonder why Cheesecake Factory was pulled into this. Especially since Cheesecake Factory hired an outside vendor for the janitorial work, who then subcontracted to another cleaning company. Shouldn’t this lawsuit be directed solely at the subcontractor?
Cheesecake Factory ignored the other two times one of their janitorial contractors underpaid employees. However, the state laws have changed since then and the liability goes all the way to the end user. Now all three companies (Cheesecake Factory, their contractor, and the subcontractor) are being held liable… for $4.57 million. The 559 janitorial workers involved in this case were underpaid $3.94 million!
For years, Federal contractors have been subject to a standard of ensuring they use subcontractors that meet the same compliance standards. Even if you’re not working with a governmental agency, it’s time to do your own due diligence with your contractors. Now more than ever you will be judged by those you associate with and you will be held accountable, legally and financially.
“I worry about how to interview so I won’t ask illegal questions. How do I know what I can or can’t ask?”
Your HR Survival Tip
When writing a job ad or job description or interviewing, it’s critical you focus on the job duties and what it takes for someone to do those duties. Every sentence, every question should be about the job.
It’s easy to become discriminatory when you don’t focus on the job. When you start thinking about the person instead of the job, you’ve lost your focus. It’s okay to ask questions that relate to your culture because that’s still a business focus… just remember to ask those questions the right way.
One of the newer laws in California bans us from asking questions about previous wages. The point was to level out wages based on the job, not wage history. In addition, it prevents us from making decisions about a person’s ability based on how much they had been making.
Age discrimination is alive and well… ask anyone over 50 who has been looking for a job. There are many ways age discrimination shows up:
- Instead of saying you need at least 5 years of experience, the ad says 5-10 years.
- Your application (online or print) asks for graduation dates instead of just asking if they graduated.
- Instead of stating you need someone who is proficient with computers or programming, the job description says they must be a digital native (meaning they were born into the computer age).
You’re looking for an employee, not a date. Whenever you come up with a question that is personal, think about whether it truly relates to the job. If not, don’t ask it. If it does relate to the job, really think about how to ask it so you only get the specific answer you want.