No Surprises

Employees don’t always like surprises and, in most cases, you really don’t want to surprise your employee unless you’re handing them a bunch of money. Don’t be surprised if nearly every other surprise could become a problem.

We are currently seeing legal attempts to eliminate surprises on medical billing from insurance companies. Too many people have been unpleasantly surprised by receiving unexpected charges from medical providers and hospitals. However, this isn’t the only type of surprise that can be a problem.

Providing a performance review that includes negative feedback shouldn’t be a surprise. If the manager is communicating properly and regularly with the employee, the performance review or performance improvement plan should really be more of a summary of previous conversations. Slapping them with a bad review once a year is rarely going to achieve your desired results. And only giving positive feedback on an annual review isn’t likely to keep them excited about working for you.

The employment relationship ends for a number of reasons. However, unless the company is in a dire situation that requires immediate action, terminating an employee shouldn’t come as a surprise to them. If you are terminating due to poor performance, why didn’t you try to change their performance in a way the employee understood their job was at risk? Ideally in this situation, the employee isn’t wondering if they will be fired, just when. They should already understand they haven’t been working at the level you want or need.

Even a raise shouldn’t necessarily be a big surprise. Raises are usually given to good performers and your positive comments to them should have prepared them for the possibility of a raise. Any surprise from the employee should be based on the amount of the raise, not just on the fact they are getting one. If you aren’t providing positive feedback regularly, don’t be surprised if those good employees start looking elsewhere for acknowledgment of their skills and/or knowledge.

Whenever you see an employee surprised by what just happened to them, take it as a sign you didn’t prepare the employee by giving them sufficient feedback along the way. Changing bad behaviors and encouraging good behaviors works much better with continuous feedback. It’s those small comments to your employees that will help them achieve what you want.

Special Clothing

“I’d like my employees to wear certain clothing for work. What can I require?”

Your HR Survival Tip

Many companies like employees to follow a clothing theme that includes the company logo, matching the company colors, or just a standardized look. It’s possible to dictate everything from a hat down to shoes but what you dictate will depend on what you’re willing to pay for that look. Below are some of the possibilities:

Logo Wear: If you want employees to wear clothing with your logo, you need to provide that clothing, and in a quantity that will last a week. The company is responsible for paying for this clothing but you can ask for a refundable deposit you pay back when they return the clothing. You are also responsible for the cleaning of this clothing but, instead, it can be a small reimbursement paid each pay period.

Shirts and Pants: When you require employees to wear certain colors or styles of shirts and pants, whether you must pay for it will depend on your requirements. If the colors and styles are fairly common and can easily be worn elsewhere, it’s unlikely you’ll need to pay anything. The more specific your requirements are, the more likely you’ll have to provide a clothing allowance. For example, if you want a goldenrod polo shirt and tuxedo pants to be worn, you should plan on paying for them. However, a broad definition of white shirts and black pants that can easily be worn anywhere eliminates the need for you to pay for that clothing.

Shoes: Often specific requirements about shoes are related to job safety. If you are in construction, you can require steel-toed shoes/boots and not have to pay for them because those shoes are required throughout the industry. The same is true of slip-resistant shoes in the restaurant industry. Closed-toe shoes are an easy requirement to have without having to pay for them. However, requiring everyone to wear a very specific shoe or an unusual color will likely be your responsibility.

The other side of specific things to be worn is the list of specific things you don’t want employees to wear. This list often includes t-shirts with sayings or pictures on them, spaghetti straps on tops, tops that are too short or pants that hang too low, flip-flops, etc. Think through your preferred dress code and create a policy that is enforceable… and affordable.

The First 90 Days

“I’ve been using 90 days as the orientation period for new employees but it really takes us about 120 days to determine if they can do the job. Is it okay to make it longer?”

Your HR Survival Tip

The introductory period for new employees isn’t set in stone at 90 days and it’s also not some magical period where anything goes. Think of it instead as a reminder to pay attention to your new employee so you can more quickly determine if you’ve hired the right person for the job. Things to remember during this period:  

  • There is no more legal protection for your company within the first 90 days than in the next 5 years. You still need to follow all the laws and have a legal reason for terminating the new employee. However, terminations do seem a bit easier if one or both of you discover this relationship isn’t working within a month or two.

  • The 90 days is merely the common period. Some positions require more or less time to determine if the person and the job are a correct match. Decide what your time might be and be sure to state it may be extended if needed.

  • If you have made the offer of higher wages or a bonus upon completion of this period, be explicit on expectations so you don’t end up paying more before you’re sure about the employee.

  • Mandatory benefits do not take into account the status of the employee so they apply to all hires. These include workers’ compensation insurance that must begin on day 1 and paid sick time that must either start accruing on day 1 or be front-loaded on or before day 90. If you are signed up with CalSavers, you need to add the new employees to the plan within 30 days of hire.

  • Your company’s group health insurance, if offered, makes all employees working an average of at least 30 hours per week eligible within 90 days. Eligible employees must be covered by day 90 even if they haven’t yet successfully completed your introductory period.

Those first few months are really critical for both you and the new employee… it’s the honeymoon period for you both. Their job is to impress you by showing they have the skills and knowledge to do the job. Your job is to ensure they have everything they need to succeed and to provide a warm welcome to your company. If you are both doing what you should, knowing if this was a great hire will be fairly obvious.

When to Take Disciplinary Action

“When an employee does something wrong, I have a conversation with them. Then I have another conversation. At what point do I need to take disciplinary action and what should it be?”

Your HR Survival Tip

It appears you don’t consider your conversations with your employees as disciplinary action. Yet, they are a mild form of it. The first time you provide any type of constructive or negative feedback to an employee, you’ve begun the disciplinary process. The level of the action, hopefully, matches the level of the problem.

The first step in a disciplinary action is often that conversation. The conversation doesn’t need to be a confrontation… consider it a friendly way to adjust what the employee is doing toward what you want the employee to do. Just don’t make it too friendly and cause your employee not to take you seriously.

We’ll hope the first conversation did the trick and everything is going smoothly. But, if not, you really should take it to the next level. Some supervisors will think the next level means they should have more conversations with the employee but that’s not what we mean.

If you need to have another conversation, don’t just make it a repeat of the previous conversation. If you keep doing the same things and the employee keeps doing the same things, nothing will change. At the very least, follow it up with a written memo or email that reiterates what was covered and your expectations. Many people comprehend better by reading something rather than just hearing it. Give your employees a chance to meet your expectations by making sure they really understand what you want.

Everything discussed thus far is based on needing your employees to make a few basic changes to their performance. If the problem is more serious, your response should be more serious, such as a final warning or unpaid suspension. Remember to be consistent in your application of any disciplinary action so it doesn’t appear discriminatory.

PTO Use and Rules

“I’m not sure I have my paid time off set up correctly.”

Your HR Survival Tip

PTO can be a bit confusing because it means “paid time off” but is a recognized plan that differs from other types of paid time off. A PTO plan combines the traditional vacation leave, sick leave, and personal holidays into a single consolidated account for each eligible employee. Employees are able to better manage the time off to fit their personal needs because the time off isn’t limited by the individual buckets of sick, vacation, etc.

Thanks to the paid sick leave laws, companies do have to ensure their PTO plan meets the legal requirements, including:

  • Accruals must start on the date of hire, even though you can state no usage is allowed for the first 90 days of employment.

  • If accruing, the minimum accrual is 0.0334 hours of PTO for each hour worked (1.336 hours of PTO each 40-hour week, 69.472 hours per year) and overtime hours must be included. This may be a higher rate than you planned but you must accrue at least as much as sick leave requires.

  • Maximum accrual must be at least 48 hours but it’s often more, depending on your locality and relevant paid sick leave law. On the other hand, vacation must have a maximum of at least 150% of the annual accrual. You’ll need to determine the maximum needed to keep you compliant.

  • You may not require employees to use more than 2 hours at any one time.

  • You are more limited in how you require notification of time off. You can specify personal time off must be requested 2 weeks in advance (for example) but can only request advance notice when possible from employees using PTO for sick leave reasons.

  • The entire bank of PTO hours may be used for sick leave purposes so you may not be able to use attendance for disciplinary purposes until all the hours are depleted.

  • If you are providing paid sick leave in addition to PTO, we recommend your PTO policy requires the use of any available paid sick leave before using PTO for sick time.

  • Any and all accrued PTO must either be used or paid out upon termination.

While PTO is popular with employees who rarely use sick leave, it is now less so with employers because of the added limitations from sick leave laws. Hybrid models may be better for you where you have different plans for different levels of employees. For example, a PTO plan for managers and above and individual sick and vacation plans for those below manager level.

It’s Sick, Not Vacation Time

“I don’t offer paid vacations so I just let my employees use their sick time however they want.”

Your HR Survival Tip

Allowing your employees to use their paid sick time for anything other than what the law states is putting you at risk legally. California has required paid sick leave for several years and we have approximately 30 localities with laws that are typically more generous and often pickier than California’s law.

The sick leave laws provide a fairly extensive list of reasons why employees may use their available sick leave. However, they are not allowed to use it for other reasons, such as personal time off. The danger you have in allowing all reasons for sick leave is that the available time will be viewed differently legally.

Currently, unused sick leave is not paid out upon separation from the company. Once you allow employees to use the sick leave for other personal reasons, you are automatically converting your sick leave to vacation time. A court decision has stated if you allow sick time to be used like vacation time, it -IS- vacation time and balances must either be used as paid time off or paid out when the employee leaves your company. There is no use it or lose it with vacation time.

Vacation is a true benefit you can choose to offer or not. Once an employee earns vacation time, it must be used or paid out because the state considers earned vacation time the same as cash. If you offer vacation time, the maximum unused balance an employee may have must be at least 150% of their annual amount. So, an employee earning 80 hours per year must be allowed to have an unused balance of at least 120 hours and, if you have no policy limiting the max balance, the time will continue accruing and could become very costly.

None of the sick time laws dictate the paid time off must be called sick time. But the legal details can trip you up because if you call your sick time anything else, you must ensure the policy still meets all the rules of sick time. Review your time off policies and ensure they meet relevant laws.

But You Didn’t Document

“I recently terminated Sam, my employee. I had several discussions with him about his performance but he didn’t listen and improve. He said I couldn’t fire him since I hadn’t written him up. Is that true?”

Your HR Survival Tip

While it can greatly reduce your risks if there is documentation to back up your decisions, it is not legally required. California is an at-will state and you should have an at-will statement in your Employee Handbook and offer letters. This is simply a reminder that the employment relationship can be ended at any time and for any reason by you or the employee, with or without notice.

Ideally, you want to let employees know if there is a problem. Even though you had several discussions with Sam about his performance, you don’t know if he understood the level of your concerns. Both of you benefit if you confirm Sam’s understanding. Consider:

  • Writing a brief summary of the conversation and expectations and give it to Sam, with a final sentence saying “if this is not what you believe we discussed and agreed upon, please let me know.”

  • Asking Sam to write a summary of your discussion and give it to you. This is an even better way of ensuring he understood.

  • Creating a detailed performance document, explaining the problems, solutions, and deadlines. Then go over it verbally, and in detail, with Sam. Ask Sam questions so he must interact with you during this conversation.

  • Making sure your verbal conversation and/or written documentation includes “lack of improvement may result in disciplinary action, up to and including termination” when previous attempts to correct Sam’s work have not been working.

Ultimately, the point of having the documentation is to provide proof of your efforts to improve Sam’s performance and, at the same time, help Sam better understand what you want so he makes an effort to meet your expectations. Providing both verbal and written performance feedback uses two of the most common learning techniques so you’ve dramatically improved Sam’s chances of success. While managers often don’t want to take the time to document, working to improve an employee’s performance is usually less costly in terms of time and money than having to recruit, hire, and train a new person.

WEBINAR: Successful Separations

Tuesday, August 30, 2022
8:30a – 9:45a

DIY HR Store

Employees eventually separate from companies, in one way or another. Whether that separation is voluntary or involuntary, you need to understand how to handle the legalities. Plus, in today’s lawsuit-crazy times, you want to avoid common mistakes. You will also receive the paperwork we use for separations. Participation in this webinar will help you:

  • Understand employment relationships.
  • Identify relevant employment laws.
  • Recognize legitimate termination reasons.
  • Differentiate between voluntary vs involuntary terminations.
  • Prepare for the termination meeting.
  • You will receive an email by August 29th with a link to join the webinar.

Presenter: C.J. Westrick, SPHR, HR Consultant and Founder of HR Jungle LLC
C.J. has been involved in human resources management and consulting since 1990 and founded HR Jungle LLC in 2006. She has a bachelor’s degree in business management and has maintained her SPHR (Senior Professional in Human Resources) national certification since 2002.

DIY HR Store

The Order of Things Digitally

“I am scanning and saving all the employee paperwork but the folder is becoming a bit of a mess.”

Your HR Survival Tip

Most employee documents may be scanned and the paper shredded. However, there are a few documents that may need a “wet” signature… meaning the real, original signature. The I-9 Form is the primary one needing a real signature for Federal compliance, even though you can scan it after getting their signature. Your attorney may want certain agreements to have a wet signature or may allow specific digital signatures through a company that has met court standards.

The digital folders will typically be the same as those used for paper documents: legal, medical, payroll, and the main folder with sub-folders for employee, employment, performance, and miscellaneous documents (see our 7/20/2022 article for details about what goes into each folder). Since the primary folder for each employee (holding all the employee’s other folders) will have the name of the employee, we don’t add it to each document or sub-folder.

You can’t manually place the most recent document on top so the file name for each document takes on a special organizational role in the folder. You need to be able to find them later so make it easy on yourself by thinking through the appropriate file names for these docs. The naming protocol we prefer for documents looks like this because it seems the most logical:

EDD claim 2021-0515

EDD claim 2021-05-15a

Perf review 2022-07-27

Perf review 2021-06-28

Wage increase 2022-02-12

Wage theft notice 2022-02-12

Writeup – attendance 2022-05-03

Keep the name of the document simple so fewer characters are used but you need enough of a name so it’s still very easy to understand what each document is. Format the date exactly the same way each time because using dots instead of dashes or not using a zero may change the order of your documents. Create a master list of the naming protocol you will use for every form you currently have in the files and add to it as new forms appear. Once you have your master list and know documents are easy to find using your chosen protocols, you are now ready to start creating employee digital folders and renaming your digital files. And, lastly, don’t forget to limit access to your confidential digital files!

Travel Pay

“I have field employees but am confused about what I can or should be paying them for their travel.”

Your HR Survival Tip

A lot of companies are confused about what travel pay includes so you’re not alone. Since California has been litigating wage details more often, it is important to calculate an employee’s pay properly. Travel pay is directly related to non-exempt, hourly employees but paying for mileage affects all employees.

There are some exceptions to the following guidelines so discuss your policy with someone knowledgeable to ensure compliance:

Commuting from home to the company’s location — When an employee travels from their home to the company’s location, they are not legally eligible to be paid for their time or transportation costs. This is assuming the work location is the same every day.

Commuting from home to different work sites — When the employee’s job site moves around, such as to various customer sites, you should calculate the extra distance the employee needs to go beyond their normal commute to the company office. That extra distance is considered work time so the employee’s time and mileage should be paid.

Leaving the office to go elsewhere for work — If the employee is at work and must leave that location to go run a work-related errand or go to another job site, both their time and mileage should be paid.

Long-distance travel — Employees who need to travel a long distance for work must be compensated from the time they leave their home until they reach either the work site or lodging, whichever is first. The same concept applies when returning home.

Paying for time — When an employee is considered to be on the clock, they are paid. If the employee’s normal job isn’t as a driver, California allows you to pay minimum wage for travel time because the employee isn’t doing the work they were hired to do. You need to provide advance notice of a different pay rate for travel time and properly calculate overtime pay based on different rates throughout the workday.

Minimum wages during travel — Local minimum wage laws state you must pay the local minimum wage if your employee will be working at least 2 hours that week in that jurisdiction. That could make for some interesting calculations when it takes an employee longer than 2 hours to travel through a jurisdiction. However, since the employee won’t be performing any work while driving through and stopping for gas or breaks don’t count, you only use the minimum wage for your company office location for travel pay to and from the job site. Once your employee arrives to work at the job site, the job site’s minimum wage would apply only for time worked at the job site.

Paying for mileage — If the employee is using their personal vehicle, the company receives a benefit by not having to provide transportation and should pay for that benefit. When paying for mileage, the Internal Revenue Service (IRS) provides a standard mileage reimbursement rate that is intended to cover all the costs involved for the employee’s personal vehicle… and raises no questions.

Travel pay based on vehicle or home location — Which vehicle an employee chooses to purchase or where they decide to buy or rent a home isn’t the company’s responsibility and isn’t typically part of this discussion. However, rising gas and home prices can play a role in whether the employee is willing to make longer commutes. Companies might consider an employee’s location when hiring if you know frequent non-commute travel is part of the job.

The reason companies must pay for travel time is based on the legal definition of time worked. This is time during which the employee is subject to the control of an employer and includes all the time the employee is “suffered or permitted to work, whether or not required to do so.” Basically, if you want, expect, or even just allow your employee to work, it’s paid time.