“I’m hiring an Office Manager and have found a really good candidate, Jane. I had planned to pay $15.00 to $17.50 per hour but Jane was only making $11 per hour at her last job so I know she’d be thrilled by $14. Do I have to offer her something within the range, even if she didn’t know the range?”
Your HR Survival Tip
While you might be able to get away with paying below the range you created, there are several reasons why you should stick with your range.
Pay for what you want done and then hold the person accountable for doing the job. You created that range somehow and it should represent the level and quality of work you expect for that pay. Offering a lower amount just lowers those expectations.
In addition, no matter how confidential we like to believe wages to be, employees talk… and those conversations are protected by California law stating you cannot stop them from discussing wages. Even if there are no other employees, it seems confidential information is rarely totally secure within the company. What happens when Jane learns about the original range or that other employees with fewer responsibilities are earning more?
Starting a position too low often means, at some point, you’ll need to provide an “equity increase” to bring Jane up to the level in the marketplace. If you don’t evenutaly pay in the range of other companies, you take the risk of losing her to another company. Even if you’re only focused on the money, keep in mind the cost of replacing Jane will be far greater than paying her a fair wage from the start.
This mindset of paying only a little above what someone was previously earning, instead of what the position is actually worth, has been the reason legislation is currently winging its way toward a new law. The proposed law will prohibit employers from asking about previous wages… just to prevent this type of below-market offer!
I happen to like knowing what candidates previously earned because it helps me determine if we are both wasting our time continuing the interview process. I also like knowing I can hold the employee accountable for the work itself because I’m paying a fair wage. What do you like knowing?
“An employee’s behavior has changed recently. Jane is working slower and she seems to have trouble paying attention. We think drugs might be involved. Can I send her out for drug testing?”
Your HR Survival Tip
Yes, but you want to be cautious in this area. First, have a conversation with Jane and explain what you’ve noticed. Ask if she has an explanation for her changed behavior. Maybe she’s bored with the work or has personal problems distracting her.
You want employees to let you know when they are prescribed drugs that may alter their behavior or create a danger to the employee or others. However, do not ask what is medically wrong with Jane… you only want to know if she’s on a prescription drug that could explain her behavior.
Several prescription drugs can make you sleepy… which could explain Jane’s inattentiveness and will let you know she shouldn’t operate a vehicle or other equipment. Her doctor may be trying different drugs to find the right balance for a health issue and the changes to the prescribed drugs could be causing her behavior changes. If a prescription drug is the cause, you’ll want to know when Jane will be off them and you can expect her performance to return to normal. You could ask for a note from her doctor if the prescription prevents her from doing her usual work.
If Jane tells you she isn’t on any prescription drug and doesn’t offer any other reason for what you’ve noticed. You might now consider a drug test. However, you want to be fairly sure that what you’ve noticed is actually a sign of drug use. Do your research. A few signs include, but are not limited to:
- Bloodshot eyes or her pupils are larger or smaller than usual
- Unusual smells on her breath, body or clothing
- A change in her appetite or sleep patterns (however, it’s unlikely you’d be aware of this)
- Unexplained changes in work performance (beyond normal ups and downs)
- Sudden weight loss or gain
- Deterioration of her physical appearance and personal grooming habits
- Uncoordinated movements, tremors, or slurred speech
Just so you know, having a medical marijuana card does NOT automatically make it okay for Jane to have used marijuana recently or while working. If your company has a drug-free policy, Jane can’t use marijuana or still have it in her system while working. Marijuana is still a Federal illegal drug and your drug-free policy truly means no state or Federal illegal drugs.
If you’ve decided to send Jane for drug testing, be ready to send her immediately and put a time limit on it… “you need to go for a drug test within the next hour.” In fact, call a cab to take her there and bring her back to work. You should already have a contract in place with a testing company and know where the closest lab is located.
California does not allow random drug testing… you need a reason for testing, which is why you want to be careful. Protect your company with a written drug and alcohol policy that includes pre-employment drug and alcohol screening and/or the possibility of “reasonable suspicion” testing… and the consequences of failing the test or refusing to take the test.
“I’m using a computerized timekeeping system for my employees. I love the convenience because it can be set to automatically clock them in and out based on their normal schedule and I don’t have to remind them about a missed punch. Although they take meal breaks at different times, I’ve discovered the system can also be set to automatically punch them out/in for the meal break. Is there a problem with the system using the same start time for everyone’s meal breaks even though they actually vary?”
Your HR Survival Tip
The meal break isn’t the only thing you should be concerned about here. Aside from knowing what to pay your employee, having timekeeping information is critical for your company.
Your company needs proof you have paid the employee properly for time worked, any overtime worked, late or missed or short meal breaks, requested time off, etc. Without proof, California will believe whatever your employee says. Plus, the state can review up to 4 years of ALL your payroll information when conducting an audit.
Here are a few timekeeping basics:
- Only non-exempt (hourly) employees are required to track their time. You can also require exempt (salaried) employees to track time but it’s normally for job costing purposes rather than tracking their total time worked.
- Require employees to clock in only for themselves and no one else. It’s fraud if they clock in or out another employee.
- If you’re using handwritten timecards, require employees to put the actual time rather than the scheduled time (i.e., enter 8:02 instead of 8:00). Timecards showing 8:00 to 5:00 everyday on that sheet won’t hold up in court as proof you’ve properly paid your employees. Timecards like that look fake because no one actually clocks in and out exactly at the same time every workday.
- You should never enter or correct a time for the employee without the employee’s signature authorizing or requesting it. Your entry could be considered invalid without proof and the employee could say you eliminated their overtime.
- Meal breaks must show actual times just like the day’s in and out times. You need to have proof the employee began the meal period within the first 5 hours of work and that it lasted at least 30 minutes. If you don’t have this proof, you’ll owe that employee one extra hour of pay (penalty pay) every day it happens.
- Do not have your timekeeping system automatically deduct 30 minutes for meal breaks. Again, you’ll have no proof the employee actually took their meal break.
- If you are using a computerized or electronic timekeeping system, make sure employees have a personal login and password or some other method to confirm no one else could have entered the information.
Timekeeping seems to be equally hated by all but it is a necessity. Ensure your timekeeping processes will actually keep you out of trouble instead of making you vulnerable to claims.
“Every year on an employee’s anniversary I give them a pay increase of $1.00 per hour. However, now their pay is getting a little too high for the work they are doing. What can I do instead?”
Your HR Survival Tip
There is a difference between rewarding employees for sticking around versus rewarding them for their work. Your method is paying employees for sticking around … and nothing more.
Rewarding employees for taking on more responsibility, helping you reach your goals to grow the business, doing their work faster or better, or learning a new skill makes more sense. When you reward employees this way, your company also does better because your employees are bringing more to their jobs.
When the recession hit in 2008, companies dropped the percentage they were giving for pay increases and some even stopped increases for a time. It’s now several years later and we’re still seeing only 2-3% pay increases each year. Unfortunately, it doesn’t look like that range will increase in the near future.
Most of the time, an increase of 2-3% is barely noticeable to a non-exempt employee … and could even tip them into a higher tax bracket that results in a lower net pay. Let’s be honest; these tiny increases aren’t viewed favorably by employees. Demotivating your employees wasn’t your intent but you also can’t keep paying larger increases without eventually overpaying.
It’s time to consider a bonus program that rewards high performers. You don’t guarantee annual raises. You only provide bonuses to employees who really step up and go beyond their normal job. The bonuses don’t increase the hourly wage; these are extra checks that reward behaviors you want to encourage.
You don’t need to stop all raises but you do need to think more about why you are giving that specific employee that particular raise. A raise should never be about the fact that they’ve managed NOT to be fired. A raise should be a reward for doing something more and doing it on a consistent basis.
“My company and our clients are quite conservative so I want my employees to fit into that conservative image. Can I require my female employees to wear dresses or skirts and men to wear suits?”
Your HR Survival Tip
In some fields, like finance and banking, employees always wore very conservative clothing. Men wore black, dark blue or dark gray suits with a white shirt and a tie that didn’t have people staring at it trying to figure out what it said about their personality. Women wore a dress near their knee or a suit that had a skirt instead of pants.
However, times have changed. I was amazed to discover two things: (1) California passed a law in 1994 giving women the right to wear pants in the workplace and (2) that it took a law. Really?
Today, when a company tries to address the issue of conservative appearance, we’re usually talking about prohibiting visible tattoos or piercings, no cleavage or butt cracks showing, and no see-through clothing. Discrimination rules also have us prohibiting pictures or sayings on T-shirts because they could be viewed as discriminatory by someone. Certain types of jewelry can be a safety issue.
Clothing and appearance in the workplace has become a discrimination issue. You can no longer identify the differences in clothing, jewelry, make-up, or hair based on gender; now you focus on unisex clothing and appearances that may be inappropriate for your company. This avoids not only gender discrimination but also gender identity discrimination.
State your employees must have a conservative appearance and even give examples of what that looks like to you… just leave off the gender language. For example, we feel a conservative appearance includes suits, knee-length dresses, pants that touch your shoes, closed-toe and closed-heel shoes, ties with muted colors and patterns, no visible tattoos, only one small earring in each ear and no other facial jewelry, and no more than two rings. This covered a lot of territory for both genders while never specifying gender.
If your business prospers by providing the appearance your clients want, it’s easiest to hire people who understand this and naturally dress that way. There are a lot of companies out there willing to hire people who don’t fit into a certain look but are great performers at work. You just have to decide how much appearance matters for your company and for the work the employee will be doing.
“I have an employee who wants to bring his miniature horse to work because it’s a support animal for him. What am I supposed to do in this situation?”
Your HR Survival Tip
Call an employment law attorney! While dogs may have been the standard service/assistive animal for years, even a miniature horse can be trained as a service animal. The reason this is a delicate legal issue is because, in addition to the known American Disabilities Act (ADA), there are several agencies and other laws that all have slightly different rules about service animals and those qualifying as assistive animals.
Service animals are specifically trained to provide a service for their owner, such as guide dogs. Assistive and support animals do not need to be trained and are often considered a reasonable accommodation. All a support animal must do is provide emotional, cognitive, or other support to a person with a disability.
While you may have to take your employee’s word his horse is a service animal, you have the ability to ask more questions about assistive animals. You are allowed to ask for documentation from your employee’s health care provider stating the animal is necessary for your employee’s ability to perform the essential functions of the job. You can also request confirmation that the animal:
- will be free from offensive odors and will display habits appropriate to the work environment, including the elimination of urine and feces; and
- will not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace.
The definition of disabilities has changed over the past few years and resulted in many more people being eligible for accommodations. Don’t assume your employee doesn’t have a disability or that their horse isn’t an assistive or service animal. You need to treat this as seriously as you would treat any other disability accommodation request… regardless of the type of animal.
The ADA authorizes fines of up to $55,000 for a first violation, plus whatever fines are possible from other laws you might violate if you handle this badly. Don’t horse around… get advice from an employment law attorney.
Not everyone is taking California’s Fair Pay Act seriously. Perhaps Qualcomm’s case will help convince you that some women are taking it very seriously.
Qualcomm decided to settle a proposed class action discrimination claim before it reached the lawsuit stage. They are paying more than 3,000 female employees $19,500,000, in addition to agreeing to make policy changes.
The complaints began with their female employees working in the technical fields (technology, science, mathematics, and engineering) who were being paid less than their male equivalents. Added to that, females in senior leadership positions accounted for less than 15% of all senior employees. Women felt they received fewer promotions because men were making those decisions.
There was also a reward system that favored employees who arrived early and stayed late at work. This unwritten policy was felt to be a disadvantage to women with children who had to deal with childcare issues.
As you know, CA’s Fair Pay Act states all employees must be paid equally based on job responsibilities, skills, experience, and other objective data. CA’s law extended the practice to more than just a male or female in the same job… you have to compare other positions that have similar requirements in other departments.
Qualcomm’s issue involved the Fair Pay Act but also included other laws protecting discrimination. Yes, this is viewed as another form of discrimination because it affects a protected class.
The Fair Pay Act has only been in place since January 1st but there are other laws that have been around much longer. While you won’t get hit with a $19.5M claim, can you afford to pay $50,000+ for an attorney plus more to settle claims? It’s past time to review your pay policies.
The employment-related laws just keep coming and it seems every new or changed law has required notices to post or distribute. California has had auditors visiting companies randomly this year. You can be fined if an employee is asked about posters and can’t tell the auditor where the information can be found.
As a reminder, required posters must be easily available to all employees. If an employee can’t access the room where you have the posters, you have them in the wrong place. If you have field employees, you need to give them their own poster information in the Company vehicle or as part of their own Employee Handbook or as separate documents.
The following isn’t a complete list… I may have forgotten something (it happens!) or there may be special postings required for your specific industry. However, this is a good start.
What should be posted?
- A current employment law poster. Since it’s possible to get a current poster for under $40, there’s no reason to keep using an old poster year after year. Lately, the laws have been changing sufficiently so you really need a current poster, plus all the mid-year notices. New posters will include the previous mid-year updates so you can clean up your wall at that time. You can always get the poster for your state through a link on my website.
- You have always needed to post the appropriate Industrial Wage Commission order (in California) but not everyone knows this. The document is about 14 pages long so just print it out, staple it together and stick it on the wall next to your poster.
- The federal Employee Polygraph Protection Act notice also went into effect 8/1/2016 and requires posting.
- A new federal minimum wage notice became effective 8/1/2016.
- The minimum wage notice for your locale must be posted, if your locale has a different wage than the state (like San Diego).
- Sick leave notices for state and local laws must be posted. A current employment law poster should have California’s sick leave on it but the San Diego notice is new.
- If you have employees who work inside or outdoors and the thermometer starts going over 80 degrees, you are going to need to add the OSHA Heat Illness poster to your wall.
- There are a few industries that must post the federal human trafficking notice, such as places serving alcohol, offering massage or bodywork services, and urgent care centers.
What should be distributed to each employee?
- A separate document about your harassment policy. This became law on 4/1/2016 in California and there is a specific list of what this document must include and when it needs to be translated. Even if you have an Employee Handbook, this separate policy is still legally required.
- Your sick leave policy must be in writing or you can’t limit how much sick leave employees can take. The policy should also include details that meet the local and state sick leave law regulations.
- If you have employees who work in San Diego, you must distribute the City of San Diego Earned Sick Leave and Minimum Wage Employee Notification Form. You need a signed copy in each employee’s file by 10/1/2016 to prove it was received.
- If you have an Employee Handbook, it must be either distributed as a paper or digital copy to each employee. You can keep just an office copy only if it can be easily accessed at any time by all employees. If you have field employees, they need their own copy or you can keep a copy in Company vehicles but must let everyone know where to find it. The office copy won’t work for field employees because it’s not accessible to them at all times.
Although all these posters and notices will never be attractive wall decor, they are legally necessary. Failure to post or distribute required notices could make you subject to fines and penalties… why would you take the risk when it’s so easy to be compliant?
“Mary has complained about John to me, saying he has touched her inappropriately and made sexual comments. Mary’s work quality and quantity is much lower than John’s and I was already thinking of letting her go. This seems like a good reason to move ahead with Mary’s termination, right?”
Your HR Survival Tip
STOP! The minute Mary told you about John, Mary was protected from any form of negative employment action. Termination is definitely negative and could be viewed as retaliation for making the complaint, which is illegal.
Do not ignore the complaint or brush it off as a misunderstanding. That’s the path to a lawsuit, even if Mary happens to be someone who makes everything into a really big thing. You have a legal obligation to investigate.
So what does it look like when the EEOC (Equal Employment Opportunity Commission) goes after you for sexual harassment and retaliation? It recently cost Z Foods $1,470,000 and, its predecessor, Zoria Farms $330,000. They are dried food processors in central CA that had two supervisors who were harassing female workers on an on-going basis. The company fired the women who complained and their male coworkers who stepped forward as witnesses for them.
If you get a complaint of any kind, you absolutely need to take it seriously and check it out. In fact, in California, a manager can be individually sued if they knew about harassment and didn’t do anything about it. Managers cannot guarantee confidentiality to an employee when the subject is harassment.
Whatever you do, do not react by changing anything about the complainant’s work situation (or that of their witnesses). If you need to separate the complainant from the accused, move the accused to a different space or put them on suspension while you investigate. Don’t rush into anything but don’t dawdle. Big delays can work against you.
Ideally, you’ll contact an employment law attorney (ask me for a referral!) so the investigation is done properly and any information discovered is protected by attorney-client privilege. You can investigate yourself, but you still need direction on how to do it right and how to document your findings and decision.
As you know, voters approved Proposition I in June. This law focuses on a higher minimum wage and more paid sick leave. It only affects your employees while they are working within the city limits, regardless of where your company is based. If your employee spends 2 or more hours within San Diego’s city limits in any week in the year, you will be subject to this law… but only for those employees and only during the time they are within the city limits. There are no exceptions for small businesses.
The real challenge will be for those of you with employees who are in and out of the city and trying to track time versus location. You’ll need to decide if you want to put the time and effort into that administrative nightmare or just plan to meet the law’s standards for all your employees or at least all your field employees.
San Diego Minimum Wage
Minimum wage for employees working within the San Diego city limits is now $10.50 per hour, effective 7/11/2016. In 6 months (on 1/1/2017), this will increase to $11.50 per hour.
San Diego Paid Sick Leave
I contacted the City Council last week and was told they were creating implementation guidelines that would result in the law being closer to California’s sick leave law. The implementation guidelines for the paid sick leave component won’t be finalized for another two weeks. The City Council made changes to the draft on Monday (7/11/2016) and will review it again in two weeks for final approval. However, this didn’t stop them from making it immediately effective.
Yesterday (7/12/2016) I was told by a representative for the City Council that a draft will be available very soon even though they can’t guarantee it won’t be changed when presented for final review. Here are a few highlights of what the draft includes:
- Amount of paid sick leave: You can limit usage to 40 hours per year.
- Method of earning paid sick leave: (1) Front-loading the 40 hours or (2) accrual of 1 hour of paid sick leave per 30 hours worked.
- Accrual cap: 80 Hours … This is huge! The original law had unlimited accrual so this cap will make it much easier to implement and coordinate with other time off
- Plan design: You don’t need to specifically have a sick leave plan but you will need a paid time off plan that meets the sick leave law’s requirements and protections, regardless of what you call it. This is very much like California’s version.
There are likely to be a few other requirements but this information will allow us to revise policies now so sick leave balances will be accurate. Don’t hesitate to contact us for help!