Managing After the Fact

“I currently have an employee on a leave of absence who is due back in three weeks. We don’t want her back. While she’s been gone, we have found so much that she didn’t do well or even do at all. Is it okay to tell her we don’t want her back?”

Your HR Survival Tip

All too often we hear from companies that an employee on leave isn’t welcome back. Nearly every time we have to say it’s not the company’s choice, it’s a legal requirement. The question companies should really be asking is why the employee’s return to work is a problem.

A common situation: Sally has been employed for two years by the company. She is legally eligible for a CFRA (CA Family Rights Act) leave of absence of up to 12 weeks off that includes job protection. About one month into the leave, we get a call from the employer. They have discovered Sally hasn’t been doing her work in a timely manner; the quality of her work turns out to be below the level expected; they even found a few things in her desk that don’t appear to have been done at all but were due months ago; and it turns out the workplace actually feels friendlier without her around. They don’t want her back due to her work performance and attitude. How can they terminate her?

Unless you already had several writeups or a performance improvement plan in place before Sally left on her leave, you’re stuck. The law is very clear that, once her leave is over, you must return her to the same or similar position. In fact, you can’t just immediately write her up and plan to terminate her upon her return because it will usually be viewed as possible retaliation for her taking the leave. Sally is in a legally protected bubble. She needs to return to work and then you can, over time, work on her performance.

Do you understand Sally isn’t even the real problem? The real problem is Sally’s supervisor who didn’t have checks and balances in place to notice Sally’s performance was below par long before she went on leave. No matter how long someone works for you, you need to make sure the work is still being done on time and at the expected level. People sometimes slow down or get a bit lax with their work and it’s up to the supervisor to ensure this isn’t happening… or is being corrected when noticed. Assuming an employee is doing everything perfectly at all is a bad management technique for a supervisor. Why wasn’t that supervisor meeting weekly with Sally to see what she was working on, whether there were problems, and to provide feedback? If the work was important, why weren’t the problems discovered before someone went digging through Sally’s desk?

Supervisors need to actually supervise their people. As soon as problems with someone’s work are discovered, it’s time to start making corrections. It becomes a very frustrating problem when the discovery only happens because that employee is on a leave. Most leaves of absence will protect the employee and tie your hands. Instead of focusing just on Sally, start looking at how well your supervisors are doing their own job because Sally’s supervisor should take as much responsibility as Sally. Don’t assume getting rid of Sally will actually fix your problem. Sally’s leave merely brought attention to the bigger problem.

Order Your Employment Law Posters!

If you haven’t already ordered your posters, do it now because the new year is coming fast!

Click on the image to the right to order.

You’ll be taken to our favorite site for ordering employment law posters. The reason is… they offer both the poster and update service for less than most places charge just for the poster.

  • All-In-One State and Federal Labor Law Poster is fully laminated and attorney-approved.
  • Continued compliance throughout the year with the 1-Year E-Update Service that provides updated postings via email with every mandatory federal and state change.
  • They have a $25,000 ‘We-Pay-The-Fine’ guarantee that protects your business against costly fines and imposed penalties.

Only $29.99 for the poster and updates!

California recently passed a law that allows you to provide the poster information electronically. However, they were also very clear that electronic copies do not replace the required wall poster in whatever qualifies as your primary business office. 

Where Did They Go Wrong?

California’s Labor Commissioner’s Office is tasked with ensuring employees receive all monies legally due them by their employers. Since this is a state agency, most of the money collected goes to the employees and a much smaller amount to the state. We’ve provided a few cases and tips below:

  • JPI Construction LLC — [San Diego] Cited $1.7 million for allegedly failing to pay overtime to hundreds of employees. They only paid employees for 40 hours per week even though the employees consistently worked more hours. TIP: This sounds like they paid a per diem wage (flat amount for the day) but failed to recognize that, in California, the per diem can only be used for the first 8 hours in a day, then overtime is due.

  • New Vision Drywall Inc (DBA Performance Drywall) — [San Diego] Assessed $50,000 in civil penalties and paid $860,608 in back wages and liquidated damages for failing to pay overtime wages. The company owed 568 employees overtime, some of which worked up to 58 hours per week. TIP: They were reported by a non-profit labor management organization, probably in response to conversations with employees. Employees will often talk to people outside your organization when they feel they are not treated fairly.

  • Adat Shalom Board & Care Inc — [Los Angeles] Owes over $8.5 million to 148 caregivers who were paid a flat monthly amount ($1500-$1800), without overtime or meal period premium pay even though they often worked 24 hours a day, six days a week. TIP: The Industrial Welfare Commission Orders (IWCs) for this industry specify how much money can be claimed for room and board. Beyond that, a company must pay employees fairly for the 24-hour care they are offering. Even using alternate workweeks, overtime must be factored in when the work continues beyond 11 hours or 40 hours in a week.

  • Perfect Point Corp (DBA South Coast Gymnastics) — [Irvine] Cited $1.3 million for failing to pay 28 employees overtime (resulting in minimum wage violations), lacking appropriate meal and rest periods, and paystub violations. TIP: The audits conducted typically go back three years to determine how widespread the wage theft may be. In the past few years, we have seen more paystub violations because the paystub did not include all the information legally required.

  • Z & Y Restaurant — [San Francisco] Reached a $1.6 million settlement for 22 employees regarding unpaid minimum wages, overtime, split shift premiums, and tips. In addition, legal violations regarding record keeping and paid sick leave were discovered. TIP: Split shifts occur when the employer requires the employee to leave and return to work later with more than an hour gap in the work. There is a possible split shift premium due that needs to be calculated and paid each time it happens.

When cited for not paying wages in full, you’re paying more than just what was owed to the employees. The amount owed to the employees, plus interest, is called liquidated damages. The agency does the math to determine the hourly wage paid by taking total wages divided by total hours worked. If overtime isn’t paid, the employee may have been earning less than minimum wage so that is another violation. Pay is due on a very specific schedule and, if you pay late, waiting time penalties kick in. Waiting time penalties are calculated by taking the rate of the employee’s daily wages multiplied by the number of days the payment is late (up to 30 days). Civil penalties are amounts paid directly to the state for failing to follow the law.

California is a state that is very protective of employees. Some companies purposely underpay employees. Other companies just don’t understand what is legally due to employees. However, ignorance of the law will never be a good defense. California has more laws around pay than other states so it is worth your time to ensure you are paying employees correctly and to understand all the little things requiring calculations that may impact that employee’s pay.

Vax Madness

“I want to stick my head in the sand and ignore all the craziness I’m hearing about vaccination mandates. How do I know what actually affects my employees?”

Your HR Survival Tip

The vaccination (“vax”) madness has only begun, it seems. Vaccination mandates are being introduced and they have a seemingly short compliance period. If a mandate affects your company, you must comply or be fined thousands of dollars. If your company mandates vaccinations, employees terminated for not complying with your policy will not be eligible for unemployment. No lawsuits trying to fight the mandates have been successful… and many have tried.

The following provides just a few highlights of regulations in place or coming soon:

  • Federal contractors and subs — If you are a Federal contractor, subcontractor, or other service provider touching employees working on Federal contracts, you are required to have ALL your employees fully vaccinated by 12/8/2021. This mandate will even affect HR Jungle because we work remotely with the employees of a few Federal subcontractors.

  • Organizations with 100+ employees — If you’re a California company with at least 100 employees (full- or part-time), you will be required to either mandate vaccinations or conduct weekly testing of all unvaccinated employees. You’ll pay for the cost and time involved for the testing so budget for this expense because, so far, we haven’t heard if there is an end date. We expect to hear from Cal/OSHA before the end of this year and be given a deadline for implementation. Plan to be ready to implement fairly quickly after the regulations are approved.

  • Organizations with <100 employees — At this time there are no new rules. You are expected to have a written COVID-19 policy and enforce it, including wearing masks when working around others.

One phrase to remember is “fully vaccinated.” You are fully vaccinated if two weeks have passed since you completed all your vaccination shots. Companies are being required to obtain proof of vaccination but to keep the documentation confidential, as you would any other medical document. We are also recommending having employees sign a certification form stating the vaccination card and information is true and valid. Although the government is tracking down false vaccinations cards and the doctors issuing them, some employees may try to use a fake card rather than be vaccinated.

SHRM (the Society for Human Resource Management) did a survey in September. They found 85% of responding companies expect these mandates to make it harder to retain employees, 72% said the vaccine-or-testing version will be disruptive to their regular business operations, and 78% feel it will make hiring more difficult. While some employees may threaten to leave a company if forced to vaccinate, they must remember that unemployment will not be available to them, and finding work with smaller companies may result in them earning less and receiving fewer benefits. You need to start making decisions and plans now for what your company will need to do to be compliant.

Sharing Personnel Files

“I’ve received a request by an attorney for a copy of an employee file. They included a very long list of things they’d like us to send them but they did provide authorization by the employee. Do I just copy the whole file and send it?”

Your HR Survival Tip

Absolutely not! A request by an attorney is not the same thing as a subpoena so different things might be allowed, plus looking through that file might result in a few surprises. If this was a court order or subpoena, you must provide everything they ask for but nothing more. You don’t have the same requirement when it’s the employee or the employee’s attorney requesting the file.

In California, most attorneys refer to DIR (Department of Industrial Relations) guidance regarding personnel files and what is considered personnel records that must be shared upon authorization or request by the employee. This list is not all-inclusive but provides the highlights:

  • Anything the employee has signed because, after all, they’ve already seen it.
  • The application for employment, if you use one.
  • Payroll authorization forms, such as the direct deposit form, garnishments, raises, etc.
  • Written documents to the employee regarding performance reviews, warnings, discipline, promotions or commendations, and termination.
  • Paperwork regarding a layoff, requests for time off, and leaves of absence.
  • Any documentation about the employee’s additional education, training, etc. while working for you.
  • Attendance records, such as a tracking report of days off.
  • If also requested, you must provide payroll records. However, this does not mean individual timecards. What you provide is a report from payroll showing the details of each check the employee has received. This is the same information found on wage statements (pay stubs) and nothing more.

Employees, or their representatives, may request to see or get a copy of their personnel or payroll records. Ask for the request in writing, especially if the employee isn’t asking you in person. You have 21 days to comply so there is no need to rush to your file cabinet. You want to review what is in that employee’s file and remove any paperwork that shouldn’t be part of the copy. Do not leave the employee alone with their file or allow them to copy it themselves… you need and want to keep control of the file.

You must retain their documentation for at least three years after termination and we’d recommend even longer. If you are keeping or storing the documentation digitally, there’s really no reason to delete old files as long as the business is in operation. Some claims can take a while to show up so having that old information may be of help someday.

While You Were Busy

It seems that COVID conversations continue to knock every other topic aside. But, while you were busy, other things have happened that need a bit of your attention. This article is to draw your attention to them so you are better informed.

Non-Compete Agreements — You can still use non-compete language in agreements but it can only control your employee while they are still an employee. Once they leave your employment, you no longer have control. This means you need to eliminate the “after termination” language because it won’t be valid. This is just one more step making it harder to keep ex-employees from becoming your competition.

Remote I-9 Review — We have always had to physically review the identification provided by employees for the Federal I-9 Form. Since the pandemic began, the U.S. Immigration and Customs Enforcement (ICE) agency has allowed us to review that ID remotely by looking at copies. ICE has now extended our remote reviewing through the end of 2021. At that time they will consider allowing virtual inspections of the ID permanently… something we all would love to happen.

Employment Law Posters — A new law that goes into effect on 1/1/2022 will add to the Labor Code that electronic distribution of required employment law posters will now be allowed. However, they are clear to state that this law does not alter the fact that you must also have the physical posters posted. More companies than ever before now have remote or field employees. These employees must have access to the information provided on these posters. If you haven’t already found ways to ensure you are compliant, work on it. The posters in California that need this visibility include the usual employment law poster (both State and Federal), local sick leave law posters, and the IWC (Industrial Welfare Commission) wage order for your industry.

COVID Pay Ended — Just a reminder that, as of 9/30/2021, there are no programs paying employees for their COVID-related leave. Your company may still be required to pay any employee who must quarantine due to workplace exposure because the presumed workers’ comp regulation is still out there. Otherwise, if an employee has symptoms, they need to use any of their personal sick time available or, perhaps, apply for state disability.

Special Unemployment Ended — Having employees receive extra unemployment has been problematic for so many businesses trying to hire people. Perhaps now (as of 9/30/2021) we can start filling positions and work on moving forward.

Mandated Vaccinations — We are waiting for Federal OSHA to create a ruling requiring companies of 100 or more employees to mandate vaccinations or to provide weekly testing of those who are not vaccinated. OSHA is expected to confirm this within a couple of months and then state OSHAs, like Cal/OSHA, will have 15-30 days to create their own version. Once Cal/OSHA does, there will be a deadline for implementation. Now is the time to start thinking about what you plan to do.

Employment law doesn’t stop just because we’re distracted by the pandemic. No matter what else is happening, it’s always a good policy to schedule quarterly reviews of any legal changes and how they might affect your company. Let us know if you need help.

Cost of Doing Business

“A few of my employees have to drive to client sites as part of their job. One employee consistently receives parking violations because he doesn’t want to walk an extra block but then forgets to put money in the meter. Can I make him pay for those parking tickets?”

Your HR Survival Tip

What do these parking tickets, lost company keys, company laptops stolen from an employee’s vehicle, and business use of an employee’s cell phone have in common? They are expenses and your company’s cost of doing business.

Both California and the IRS (Federal Internal Revenue Service) are firm on the fact that it should not cost your employees anything to work for you or to keep their job. When you charge $5 to replace an employee’s lost key or make them pay for their parking or traffic tickets, it’s costing them to work for you. As you know, the courts already decided you need to reimburse employees for the business use of their personal cell phone… even if they are on an unlimited plan so it doesn’t actually cost them anything.

All these things fall under the category of the “cost of doing business.” There is nothing you can have them sign that will take that burden away from you. People lose things, break things, and have things stolen from vehicles. None of us are perfect so why do you expect employees to be better or different with company property than they are with their own property? You can’t.

So what can you do when employees show no respect in their handling of company property or care if they are costing the company money? You bring it back home to them in another way. You write them up for failing to follow company policy of keeping company property out of sight and locked into the vehicle; for loss of company property; for failing to follow traffic rules; for failing to park somewhere that won’t result in a ticket; etc. The write-up is a notice that you don’t condone the behavior and rarely is it immediately followed by a termination of their employment.

Remember their behaviors when doing performance reviews. When considering raises, ask why you would increase this employee’s pay when they are costing you money? If the behavior continues long enough, you might lower their wage or eventually terminate their employment. However, do keep documenting so your reasons are clear and to ensure the employee has plenty of advance notice of these possible outcomes.

People aren’t perfect so don’t ask more of your employees than you could do yourself. When you see these things, determine if you could create a clearer policy or explanation that might help. Most of all, be sure you are applying the same standards to every employee so discrimination doesn’t become another issue. Employers pay for many things to be in business and employee expenses are just one of those items.

The Offer

“Is it okay to put a lot of details into my offer letter to a candidate? I like to add details about benefits, a description of job duties, and other information so I’m sure the candidate has all the information they need.”

Your HR Survival Tip

We have seen offer letters like yours that are several pages long and feel these are usually a bad idea. An offer letter is technically a legal contract and you want to keep it very simple for that reason. When you add a lot of other information, it’s very easy to end up with conflicting information between that employee’s letter and other documents. Those conflicts are where you could end up in trouble.

When creating an offer letter, don’t include anything that is written elsewhere. If your Employee Handbook outlines benefits, leave it there. If your job descriptions include job duties and responsibilities, leave them there. Ideally, the offer focuses on information that is specific to this person for this job, such as:

  • The job basics: Title, exempt or non-exempt, full- or part-time, start date, and manager’s name and position.

  • The pay: Be specific as an hourly rate for non-exempt or per period for exempt. “You will be paid a $2,500.00 salary per semi-monthly pay period (annualized at $60,000).” This wording is specific and there is no way a crafty attorney could say we promised the full $60,000 even if the employee quit.

  • The legal language: Always include at-will language stating either party can terminate the employment relationship for any reason, at any time, and with or without notice.

  • The deadline: If you don’t put a deadline on when you need the candidate to respond, you could be left waiting longer than you want. Usually, three business days is fair.

  • Their acceptance: Don’t forget to add a place for them to sign and accept your offer.

Overall, be very careful with your language. Using “will” is a promise, while using “may” gives you some wiggle room. Instead of stating “you will receive a bonus,” it’s much better to say “you will be eligible to participate in our bonus program.” Words have weight legally.

Rather than making the letter all-inclusive, add attachments. A page highlighting your “current” benefits, the job description, the bonus or commission plan, your procedures or policies, etc. make great attachments and ensures the information is the same for each person receiving it. Many companies have cut back on certain benefits in the past year or so. However, if you had those details in an offer letter rather than keeping the information in a company policy, you might legally still be held liable for continuing what you promised in that offer letter. Rethink what you’re truly offering in that letter.

A Shot in the Arm

President Biden has announced a plan that will affect companies with 100 or more employees. It appears those companies will either need to mandate vaccinations for employees or have unvaccinated employees tested weekly. This hasn’t taken effect yet and the final ruling or regulation will come from OSHA (the Federal Occupational Safety and Health Administration) or the state versions of OSHA, such as Cal/OSHA.

While it may be 2-3 months before Biden’s plan goes into effect, you need to start preparing now. Even if your company has fewer than 100 employees, we don’t know what the future will bring so you may want to pay attention.

As we’ve mentioned before, companies need to retain the proof of vaccination for any employee to go without a mask at work. Develop your system for obtaining that proof and ensuring the information is kept confidential as a medical document. Plus, once it’s considered an OSHA-related medical document, you’ll be required to keep that proof for 30 years after the employee is no longer employed by you. Obviously, some long-term planning will be needed.

Now is also the time to start talking about whether you will choose to mandate vaccinations or, instead, pay for employees to test weekly. Given that California law ensures the employee pays for nothing as your employee, it is expected you will be responsible for paying for both the cost of weekly testing and the employee’s time to be tested. Weekly.

If you are considering mandating vaccinations, you’ll need to prepare for religious and disability issues. Learn how to have those discussions with employees by speaking with your employment law attorney or HR consultant. While mandating vaccinations is completely legal and has been tested in court, the possible exemptions are trickier. You’ll need to be very careful to avoid making a decision based on asking the wrong questions.

Change is on the horizon and we all need to prepare. Biden’s plan is the next attempt to control this pandemic. However, as a business owner, you’ll be the one on the ground trying to implement the plan successfully and it’s unlikely to be easy.

Social Etiquette at Work

We have all spent time working next to a grumpy employee. They can make the day feel much longer and, frankly, also make you want to work elsewhere. While you can’t require someone to be smiling non-stop, you might suggest they maintain a pleasant attitude while at work. Of course, you also then need to remind employees of the best way to give you their complaints or concerns because no workplace is perfect for everyone.

An Employee Handbook usually tells employees what conduct is considered unacceptable. However, less is said about proper or preferred conduct. There are a lot of little things employees (and managers) can do to make your company a more enjoyable place to work, such as:

  • Say please and thank you, even to coworkers and direct reports.
  • Smile at coworkers and management, even if they don’t smile back.
  • Wait to answer your phone until you have excused yourself so others don’t feel unimportant.
  • Look at the person you are speaking to or who is speaking to you.
  • Remember people’s names and use them.
  • Handwrite a thank-you note to a coworker or direct report who has gone out of their way for you.
  • Unless you are using it for work, keep your phone on mute.
  • Be punctual so you are not keeping others waiting.
  • Respond quickly to call and meeting requests so they can be finalized easily.
  • Be considerate of those working close to you and keep the noise level down when working.
  • Dress for the type of work you do and that fits the company’s culture.
  • Clean up after yourself when using any shared area, such as a conference room or kitchen.
  • When upset or angry, wait a day before saying anything or sending that email or text in response.
  • Knock before entering someone’s office.
  • Whenever you have time, help a coworker who is struggling to finish a project.
  • Save grooming (hair, makeup, etc.) for the restrooms.
  • Bring up controversial topics on your personal time, not at work.
  • Say you’re sorry when warranted.
  • When in a group, don’t ignore or leave out someone during conversations.
  • Take the time to return calls.
  • Be a congenial coworker, not someone who brings down the mood of others.

We are often so rushed throughout the day that we forget basic courtesy when dealing with our coworkers. Consider how much you’d enjoy working in an environment that included the above behaviors, then decide how best to implement at least some of these in your workplace.