“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.
“I just discovered an ex-employee of mine, Mary, has been contacting my clients trying to get their business. How can I stop her?”
Your HR Survival Tip
In business, we are always competing for clients. In California, you have fewer options available to you to prevent “client theft” by your ex-employees.
When you have employees, you want and need to have agreements or policies in place that address this. In an Employee Handbook you might have confidentiality and/or proprietary information policies. Many companies have an Employee Non-Disclosure Agreement. However, in the end, these are merely deterrents.
Your client list (and the revenue from them) is what you are really trying to protect. You need that smoking gun… absolute proof they have stolen your company property (i.e., client list). Have you found an email where they sent a copy of your client list to their home email? Did you see your client list sticking out of their backpack or purse? A policy stating an ex-employee may not contact your clients for a year or two after termination is truly only effective if you had an ethical employee.
You should always be thinking about that client list. Do you provide business cell phones for your employees who are working directly with your clients? If your employees must use their personal cell phones for business, you have just agreed they can maintain your client list on their phone… and now the clients are contacting the employee directly instead of calling into your company when they have new business. Protecting your client list is like protecting your trademark… it requires constant vigilance.
Once an employee has left your company, they may try to play on the client relationships they had to get that business for their new employer. While this is maddening, there are some things you can do. As soon as the employee has terminated (for any reason), start contacting those clients and let them know Mary is no longer working with you and you’d like to stop by to introduce Isabel, who will be their contact going forward. Re-develop that client relationship as if it’s new again. Make sure they are happy with your company so they are less tempted to follow Mary to her new company. Also try to have more than one person working with that client so the client doesn’t feel the loss of Mary’s absence.
If Mary had signed anything protecting your client list, it may help to send her new employer that document. If they are an ethical company, they won’t be happy if she’s stealing your clients. Legal action is possible if she’s saying untrue things that could damage your company’s reputation in her efforts to steal your clients. California promotes competition so the only legal non-compete statements or agreements cover just the time Mary is employed by you, not once she’s left.
The best response to this situation is to focus on client retention. Focus on providing the client what they want. It’s not just your ex-employee contacting them… make sure clients are not susceptible to the multitude of sales people out there trying to get their business away from you. At the same time, consider how you might better protect that valuable client list going forward.
“I have 2 employees I’d like to pay a per diem wage so they don’t have to track their time. Is there a minimum I must pay?”
Your HR Survival Tip
There are certain positions, such as dental hygienists, where per diem pay gained notice and popularity. However, we’re in California and… as you already know … nothing is ever simple here.
The thing you must always remember is that California, unlike most states, has the 8-hour workday before you start paying overtime. The only thing that can alter the 8-hour day is the implementation of an Alternative Workweek filed with the state. Per diem pay falls apart when you focus on the laws: (1) You must pay at least minimum wage for each hour worked. (2) You must pay overtime for anything over 8 hours in a day.
If you have a per diem employee, you still need them to use your timekeeping system. This information is the only proof you have that this employee received at least minimum wage for all time worked. However, you’ll still pay overtime on top of the per diem pay if they work more than 8 hours.
When does per diem work? Employees who travel may receive a per diem that typically covers their meals and expenses during the trip. Same words, different purpose. However, this per diem actually works like expected. You are responsible for travel costs but the per diem caps those costs for you, assuming the per diem is reasonable for the location.
We believe paying a per diem for time worked just adds to your workload. You now have to reconcile each day’s pay with the hours worked. The employee must still track their time. In what way did per diem pay make anything easier? All per diem pay really does is guarantee the employee a minimum amount of pay each day, regardless of how few hours they might work. Does that really benefit your business?
“I typically provide an Employment Agreement for people I hire. Lately, I’ve been a bit worried about some of the language in it. What should be included?”
Your HR Survival Tip
An Employment Agreement is not legally required and, in most situations, not recommended. The problem is that something you have put in an Agreement may conflict with your Employee Handbook or other policies. In addition, you now have to review all the Agreements each time you create a new one to ensure there’s no discrimination.
You might want or need an Employment Agreement when hiring a C-level employee (CEO, COO, CFO, etc.), for example, because they often negotiate special things, such as retention bonus, relocation, bonus based on company changes, etc. However, there are other documents you should be using for the majority of your employees:
- An offer letter that merely includes the basics: title, start date, salary/wage, at-will language, and a due date for the offer to be accepted.
- The Employee Handbook includes your benefit plans and various policies. Keeping everything in the Handbook or some other manual ensures all employees are being given the same information and benefits. Too often, when a letter provides details about the benefits, it’s wrong and then you have potential discrimination because the employee has it in writing.
- Commission plans are required in California and you should use one if the employee is eligible for a commission. These plans have specific items that must be included and we also like to include quotas, even if the person earns only commissions.
- Bonus plans should also be a separate document so it’s very clear who is eligible and what is needed to earn a bonus.
- Job descriptions change and can be attached to an offer but shouldn’t be built into the offer letter. Positions are tweaked all the time and you don’t want to be locked into that specific description… instead merely refer to it by title so any new version of that job description works.
Don’t get your promises twisted up so you’re held to something you put in an Employment Agreement or offer letter five years ago. Businesses change, benefits change, jobs change… use documents the whole company receives rather than just a few individuals. Also, if the hiring is truly special enough to warrant an Employment Agreement, then it needs to be written or reviewed by an attorney to ensure you are protected.
“I buy a new employment law poster every other year. However, several of my employees work remotely and have never even seen the poster. Am I okay as long as I have it in the office?”
Your HR Survival Tip
You have compliance issues in a couple of ways. The law about the employment law posters states they must be placed in a location employees frequent… and they need to be current or you might as well be hanging wallpaper.
For a very long time you were fine buying a new poster every other year. However, over the past 5 or more years, either the state or federal government has been making changes every year and even mid-year. This year is a perfect example. We have several poster sections that have been added or updated, including:
Once you know you have current posters, you need to solve the problem of remote employees (those who don’t come into the office very often or at all). They must legally still have easy access to the poster information. Fortunately, every section on that wall poster is also available as a PDF file but must be updated every year, just like your wall poster. Here are a few options for you:
- Buy a poster for each employee… fast and somewhat expensive but effective.
- Add all the PDF versions to the back of your Employee Handbook as an Appendix. This will add about 35-40 pages.
- Add all the PDF versions to a small binder you keep on job sites or in company vehicles. Make sure employees have been told where to find them, in writing.
- Create a shared folder online where you keep the PDF versions. Make sure everyone has access to a computer if you use this method.
Ensuring you have the correct posters is an on-going process, including a new wall poster every year. A few payroll companies offer free posters and updates so start there. You can purchase a poster, including free updates for the coming year, for under $50. Don’t forget to add your Industrial Welfare Commission (IWC) poster to your wall and wherever else you’re providing the poster information. When EDD employees are walking around and stopping in at companies, the first thing they ask is “where are your posters?” Make sure your receptionist or person out front is prepared to answer!
“I have a janitorial company and heard about a new law that affects my industry. What do I need to do?”
Your HR Survival Tip
California’s EDD (Employment Development Division) has finally noticed the janitorial industry. This new regulation will change the industry and level the playing field when competing for contracts.
The janitorial industry has, historically, involved numerous independent contractors instead of employees. Some companies have already learned, through EDD audits and subsequent fines, that this isn’t a viable business model. When you add the recent CA Supreme Court ruling on independent contractors to the mix, you have a big problem if you haven’t converted your contractors to employees.
There isn’t really a way to work around this because you must register once you have one (1) janitor/cleaning person working for you plus one other employee… which usually will be you, the business owner. You’ll notice the word “employee” wasn’t used to define the janitor/cleaning person. That’s because they could be (1) an employee, (2) an independent contractor, or (3) a franchisee who is performing the janitor role.
The new regulation states you must register your company with the Labor Commissioner between July 1st and September 30, 2018. You can register online or by mail and must pay a $500 nonrefundable application fee. Your registration is good for one year but must be renewed each year (with a $500 renewal fee) before your registration expires. Online registration and FAQs can be found here.
Beginning on January 1, 2019, the janitorial companies will also be required to provide employees with in-person sexual harassment training every two years. We are still awaiting news of what, in particular, the training must include for this industry.
If you don’t register by October 1st (within 3 months), you may be subject to a civil fine AND anyone who contracts with you for janitorial services may also receive that fine.
For those of you who use janitorial services, start asking for a copy of their registration to ensure you won’t be fined for using an unregistered service. The website for the Labor Commissioner will be listing all janitorial services who have registered so that’s a great place to start your search if you need to switch janitorial/cleaning services.
“I hear people talk about vacation and PTO but aren’t they the same thing?”
Your HR Survival Tip
The confusion between vacation and PTO may be the fact that they both provide paid time off for employees. However, these plans have important differences.
We are all familiar with vacation where we earn paid time off, usually over time. The “official” PTO (Paid Time Off, with caps) bundles vacation, sick leave, and personal time into one program. Both were designed as tools to help with retention and to provide time for employees to relax and avoid burnout. Vacation and PTO plans are optional for companies. So far, the government doesn’t require personal paid time off.
- You have a lot of freedom in designing a vacation plan. Common choices includes the length of the eligibility period, different amounts based on the level of your position or longevity, accrued or dropped in, etc.
- Keep in mind that any unused vacation time earned by the employee must be paid out upon termination. You’ll need a cap to ensure you aren’t paying out months’ worth of unused time. However, legally, there is a minimum cap you need to allow.
- Vacation time, in California, may only be used for vacation time. Employees should not be using vacation time as sick time or you may open the company up to compliance issues. The way the sick leave laws were written reduced the employee’s ability to dip into their vacation time when they ran out of sick leave.
- As mentioned, PTO combines all time off for employees. While this gives employees more flexibility, a PTO plan must also be written to accommodate the requirements of the sick leave laws. This means accrual would start as of date of hire instead of months later.
- Whether they need more time due to their own or a child’s illness or are rarely sick and want more time off for fun, a PTO plan allows employees to better manage their time off.
- PTO gained popularity over the years but lost momentum when the sick leave laws came out. Attorneys were fearful of the sick leave protections and how they would affect PTO. However, things have settled down and PTO plans can be written to still provide employees with options.
Whether you prefer to offer a vacation or PTO plan, or even a plan for unpaid time off, make sure you have a well-written policy. Vacation and PTO time off represents money to the employee and there are specific things you legally can and can’t do with these programs. Let us help you create a plan that will be compliant and work well for your company!
“I have an employee who isn’t doing well but I’m reluctant to fire him because I’d have to pay unemployment. What should I do?”
Your HR Survival Tip
Worrying about whether an employee will collect unemployment is never a good reason to keep a bad employee. That bad employee will bring down morale and productivity in your company.
EDD (CA’s Employment Development Department) keeps track of all your employees and you are legally required to notify EDD each time you hire an employee. Payroll companies will usually do this for you but you want to make sure that’s happening. This is how they know who has been working with you (legally).
Your initial unemployment rate is pre-determined by your industry’s standard for unemployment claims. Whether it goes up or down is based on the quantity and size of claims you have. However, it seems like it’s really hard to lower your rate. The monies paid through your taxes are put into a state pool and they track your company’s share of the pool.
When an employee files a claim, EDD looks back at the employee’s earnings over the last 4 or 5 full quarters to determine the amount of weekly unemployment this employee can earn. If you were not the only employer in those quarters, the amount pulled from your pool would be a percentage. For example, if you were the employer for only one of the four quarters, your pool would pay just 25% of the unemployment paid to the employee.
If an employee asks EDD how to re-open a claim, the employee is told they need only work one day to be eligible. There is no minimum time an employee needs to be working for you to be eligible for unemployment. One day of work can qualify them for unemployment.
California wants to provide unemployment to individuals so they make it pretty easy for ex-employees to file. Lately, it seems the only reasons an employee may not receive unemployment is when they resign or for insubordination (e.g., rude/yelling at a supervisor in front of others… but it’s not insubordination if the employee and supervisor are alone).
When you receive a claim, only respond to the notice if you feel you have a good reason to fight the claim and want the opportunity for a hearing to give your reason. Otherwise, just file the form upon receipt… it does tell you this if you read the form carefully If you are fighting it, act fast. There is a very short deadline and EDD may not accept a late request for a hearing.
If you attend a hearing, bring copies of anything pertinent you’d like to give the judge and add to the file. Also, arrive early and ask to see the file. This will give you the opportunity to see what the employee told EDD. When you are in front of the judge, do not speak until asked a question by the judge or the judge has told you to speak. You will get shut down quickly if you try to respond to anything the employee is saying before the judge gives you permission to talk.
Instead of worrying about unemployment, you might give some thought to the training and supervision given your employee… are you allowing them to go bad? Time spent working with employees to ensure their success may result in fewer unemployment claims.
“I am expecting money from my receivables and an investor. However, right now I’m strapped for cash for payroll. What are my options?”
Your HR Survival Tip
Whenever money is tight, you need to understand your legal obligations and work to satisfy those before going further. Payroll is one of those obligations.
There are a few ways you can reduce your current payroll cost, which is often one of your largest operating costs. However, you cannot legally withhold or delay paychecks. An employee must have their paycheck within 7 or 10 calendar days after the period worked. The difference of 7 versus 10 is based on which payroll cycle you have (i.e., semi-monthly, weekly, etc.). No matter what your employees might say or agree to; you must pay on time.
You also can’t move the pay date. Even if the new date is within the required time frame, another rule is that you need to keep to the promised schedule. If you’ve said the pay date is the 5th and the 20th, then you must stick with that.
Consider just being honest with employees that the company is going through financial issues and you need to make some immediate changes. Options you could implement are below. When considering these options, either have the choice affect everyone or choose the individuals carefully so the chosen few won’t be viewed as discriminatory.
- Cut back on schedules — Reduce employees’ working hours temporarily.
- Cut back on wages — Reduce the amount each employee is paid temporarily. For example, a 10-50% pay cut until you have sufficient funds for payroll. If and when you receive the expected monies, you can opt to catch them up. However, you could keep the pay cut but you need to recognize employees may leave rather than continuing to work at reduced wages.
- Reduce your headcount — A layoff is appropriate if you plan to hire the individuals back. Otherwise, consider a more permanent reduction in force (RIF)… this is better known as downsizing.
The bottom line is, if employees are putting in hours, they must be paid in full and on time. You can’t play with that. The only thing you can do is reduce your payroll to a level that is affordable right now. Don’t wait until you’re facing a payroll with no money. Not only is that bad for morale but you could end up with fines and penalties that could make your financial situation even worse.
“I want to hire a few high school kids for the summer. Do I need to do anything special?”
Your HR Survival Tip
Schools are ending and students are eager to get a summer job. However, when hiring anyone under 18 years of age, you want to be careful of the child labor laws. There are differences for the age of the minor, as well as whether they have graduated.
A minor, for the purpose of California’s child labor laws, is considered to be anyone under 18 who has not yet graduated high school or passed the High School Proficiency Exam. However, federal law doesn’t care about schooling and that law applies to everyone under 18 years of age.
Minors need a Certificate of Age form completed and signed by the employer and parent or legal guardian. This form is also called Statement of Intent to Employ a Minor and Request for a Work Permit. It has a long title but is basically a pretty simple form. This is where you’ll list the hours and days you intend to have the minor work. This form also covers you for the federal law. Even a minor in your own family needs to have this form completed. A work permit is required even when the school is having a winter or summer break.
- The minor obtains the Statement of Intent form from their school or online and completes the “Minor” section.
- The minor requests that the employer and their parent/guardian complete their section of the form, then returns it to the appropriate school authority.
- The school verifies the information and, if the requirements are met, may issue a work permit (“Permit to Employ and Work”).
- Once you have received the work permit, you can add the minor to your payroll and set their schedule.
Minors as young as 12 may qualify for a work permit but the younger they are, the tighter the rules. Even a minor who is 14-15 can only work for 3 hours per day (18 per week) but not during school hours when school is in session. It should be no surprise to learn that minors who are 16-17 years old have the most freedom in their work schedules. For example, a 16-17 year old can work 4 hours on school days or 8 hours on non-school days while school is in session. They can work 8 hours when school isn’t in session. There are very specific schedules for the different ages, including time of day, so make sure you match the schedule to the age of your minor employees.
This is just a general summary so be sure to review the laws that pertain to what you’re trying to do. Don’t forget to notify your workers’ compensation carrier because you are obligated to have coverage for your minors. Since most minors are hired to just do basic work, plan on paying minimum wage. You may be the first employer for your minor so you’ll need to train them on using timecards and taking rest and meal breaks. No pressure, but their time with you could be a life-altering experience. Make it a positive one!