“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.
“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!