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.

Working with Sick Leave

“I continue to be confused about all the things I can’t control when someone is sick. Are there better ways to deal with sick leave?”

Your HR Survival Tip

California first implemented the state paid sick leave law in 2015. Since then, at least 30 local laws have also been passed and implemented. While most people are in agreement that employees should receive some paid sick leave, the way most of these laws were written has made life difficult for employers.

The laws allow employees to take advantage of the time off but prevent the employer from fully managing their workforce. Over the years we have heard from companies facing abuse of sick leave by their employees… with no way to stop it. There are protections for the employee provided in these laws but you can try a few things to maintain more control.

Although we can’t require employees to call in sick prior to their start time, you can request it. Typically, in a policy, this would be “please contact your supervisor at least 30 minutes prior to your start time or as soon as practicable.” The law actually uses “as soon as practicable” as the notice but most people don’t quite understand what they mean so it may help to also express what you’d like to have employees do.

The laws prohibit you from requiring a medical note from the employee unless (a) the employee has been out for 3 consecutive days or (b) the employee has used all their allowed sick leave for the year. If someone is out for a couple of days, you want to get in touch with them to find out if they will be returning to work soon or if their absence is cause for Leave of Absence paperwork. If the employee tells you they’ll be back to work on day 3, you’re done. If the employee says they will also be taking off day 3 but expect to be better and at work on day 4, this is the time to let them know you’ll need a doctor’s note to ensure the 3 days are an excused absence qualified for sick pay. If they return to work on day 4 without the doctor’s note, give them until the end of day 4 to contact the doctor’s office and get a note sent to you.

Once the employee has used all their allowed sick leave for the year, each subsequent absence can be counted against attendance. You may also request a doctor’s note for any future sick days that year. Be careful when you ask for a doctor’s note at this point to ensure you aren’t being discriminatory and it looks like you’re picking on one employee. Even with a doctor’s note, they are no longer protected by the sick leave laws and too many absences could now result in disciplinary action. Hopefully you already have a policy that defines excessive absenteeism for your company.

The sick leave laws require employees to notify you in advance of the need for sick time off for appointments. Make it clear you expect to be notified as soon as they make the appointment, not the day of the appointment. Some businesses cannot have an employee working only a partial day due to the type of job the employee has. For example, if a delivery person is responsible for completing a route that day, going to an appointment in the middle of their route is not really feasible. You can request employees make appointments for days off or outside of work hours. This may not always be possible but you can try. An incentive might help, such as still paying two hours of sick pay when they schedule that appointment on a day off. This way they still receive their sick pay and you don’t have a broken shift. Another possibility is to rearrange the employee’s shift that week so the time off is less disruptive. Perhaps having other work the employee could do that day is another option.

When you have field or remote employees, you really need to review their locations. Employment laws are valid based on where the employee is working. If you have employees working remotely, you need to confirm their home location isn’t subject to a local sick leave ordinance that requires more or different handling of their sick leave. If remote employees work outside California, you also need to be aware of the sick leave laws in those states.

Paid sick leave isn’t going away. If anything, we are seeing more time off laws that intersect each other, such as leaves of absence. Even the smallest companies are now subject to these laws so it’s time to figure out what you can do to keep your business flowing while managing the time off.

Yes, It’s Possible

“I’m never sure what I can and can’t do regarding my employees. I feel like they have more options than I do as a business owner.”

Your HR Survival Tip

We often hear from companies, and smaller businesses in particular, that they just don’t know what rights they have versus the multitude of protections California provides to employees. In most cases, it’s safer to ask someone who knows the laws. Here are a few tips for you:

Reduced Pay — You already know you may give pay raises to employees but many people don’t know they can also reduce an employee’s pay. A word of warning, though… you want to give plenty of advance notice when it comes to money. A few examples of when a pay reduction may occur include a demotion in title and pay because the employee isn’t able to perform well at their current level, or a company-wide decrease due to poor revenues, or as part of a disciplinary process where the usual write-ups haven’t been effective. Reductions must be in writing and, as mentioned, with a future effective date.

Deny or Choose Vacation — Vacation time off is a true benefit and the employer has a lot of say, as long as you’re not being discriminatory. Your policy should be clear about how much advance notice you want (and it can vary based on the length of time off requested). The policy should also state that pre-approval is required and approval is subject to business needs and the policy itself. Some companies only allow one person per department to be off at the same time, others may require a vacation to be taken at a specific time, and others may have black-out dates where no vacation time is allowed during busy times of the year. If you have a PTO policy instead of just vacation, you have these same options only when the time off is not medically related because then you must follow the sick leave laws.

Deny Job Changes After a Leave — When an employee goes on a leave of absence, the law usually requires you to return that employee to the same or similar job when their leave ends. You are not required to offer the employee anything different, such as part-time or remote work if that wasn’t what they had when the leave began. If an employee asks about changing or adjusting their job, first have the employee put in writing that they are not interested in having exactly the same job as when they left. That will remove their protection for that job and allows you to negotiate their new role. If you must have them back in the same role, you can just tell them that. You are not required to alter their job to fit their personal preferences.

First 90 Days of Employment — Many employers feel the first 90 days of employment for a new employee is the same as a “get out of jail free” card. You are no more legally protected at day 35 as you are at year five. You are still subject to all the employment laws and can be sued if you fail to follow those laws. The 90-day period is intended to make you and the employee pay attention and to use that time to determine if this relationship is a good fit from both sides. That’s it, that’s all. Don’t assume you don’t need a valid, legal reason to terminate just because the employment period hasn’t lasted very long.

Offer Employees Different Benefits — Some benefits are more flexible than others, based on whether a law adds any protections. The easiest to flex are holidays and vacations. You can decide whether you’ll provide any paid holidays or vacation, how long the eligibility period might be, who gets that benefit, etc. You must not be discriminatory so focus on groups of employees rather than a single employee and on specific levels you can define. Examples include employment longevity, title, exempt versus non-exempt, full- versus part-time, office staff versus field, and so forth.

While the employment laws may tie our hands in some ways, it’s important to learn how to be compliant while still managing your employees as you want and need. It helps to find a sounding board so you can express your ideas and get feedback on what is and isn’t possible… and learn about possible workarounds.

Revised Workplace Rules

The COVID merry-go-round keeps spinning and we’re getting dizzy. Thanks to the increasing number of positive cases we’re getting with the Delta variant, we’re now going retro.

OSHA (Occupational Safety and Health Administration) and the CDC (Centers for Disease Control) have both updated their recommendations. In the workplace, OSHA carries more weight for us legally. So, spin your calendar backward to remember the safeguards you thought were over:

  • Employees (vaccinated and unvaccinated) should wear masks in the workplace when around others.

  • Social distancing is needed whenever you are around others at work.

  • Unvaccinated workers (and anyone else) with symptoms need to stay home from work and get tested.

  • Vaccinated workers who are exposed to a positive COVID case should get tested 3-5 days after the exposure and continue to wear a mask for 14 days (or until they get a negative test result).

  • Strongly encourage unvaccinated employees to get vaccinated. Offer incentives, if needed.

  • Bring back the frequent cleaning and disinfecting of items that are touched often by employees.

  • Continue to record and report positive, work-related cases.

  • Inform employees of a way they can make suggestions or express concerns about COVID hazards… and don’t retaliate when they do.

Several companies have expressed to us a desire to just ignore the requirement for a COVID safety plan and, instead, let their employees choose what they want to do. However, this is a slippery slope and the reprisals might be harsh if you end up with an outbreak or a death among your employees. As a company, you are legally required to have a COVID safety plan in place that meets state guidelines. While you might not want to become the mask police, you should at least want to provide the guidance legally required to help keep your employees safe.

Compliance Sanity Check

It has been a tough time for many companies, thanks to the pandemic and the never-ending changes it has caused. Between remote workers refusing to return to the office and the difficulty in finding workers, most companies are still struggling to find their balance. We wanted to remind you not to ignore compliance when your focus is elsewhere.

Do all employees have the required access to employment law poster information? — While you don’t need to send each employee their own poster, you are required to make the information on the poster available to all employees. This might be a specific location at a job site or a shared drive, whatever works best if you have field or remote employees.

Are you providing CFRA (CA Family Rights Act) paperwork when someone is taking medical time off that lasts more than 3 days? — Even if an employee is only going to be off 1-2 weeks, you are required to provide CFRA paperwork to them within 5 days of the company becoming aware of an employee’s need. It doesn’t matter whether they plan to use sick or PTO for the time off, the paperwork is still required. It provides the employee legal protections, notifies them of their rights and eligibililty, and starts the clock ticking for the amount of time you’ll need to keep their job available.

Does your PTO (Paid Time Off) policy meet the conditions of paid sick leave laws? — While California doesn’t care what you call the paid time off used for sick leave, it does care that your policy meets the legal requirements. The accrual must be at least 0.0334 hours per hour worked (including overtime) and the plan must accrue at least twice the minimum sick leave required for that locale. The basic CA law requires accrual of 48 hours, with 24 hours usable (the other 24 carries over). If your plan stops accruing at 40 hours, you are not in compliance with any of the (accrued) sick leave laws. You may need to consider a front-loaded plan instead.

Are you providing paid sick time in accordance with the local laws where each remote employee resides? — Many companies are allowing employees to continue working remotely rather than bringing them back to the office. That adds a bit more work for you. Confirm the actual location of each employee and whether they live in a location with a local paid sick leave law. There are at least 30 local laws throughout California and every one of them requires more paid sick leave than the basic state law. Make sure you are providing the correct amount for each employee’s work location.

Do you pay your sales reps hourly because they work primarily from home or your office? — Technology allows sales reps to have virtual meetings, which has been great during the pandemic. However, as attorneys often remind us, the laws have not kept up with technology. The only sales rep who can be salaried (or commission only) must be going to client locations at least 51% of the time. That doesn’t include the time they spend setting up the meeting by phone or email. If your sales rep doesn’t meet that requirement, they must be paid hourly.

A tough couple of years or not now is not the time to relax your compliance. The compliance laws for these issues haven’t changed in a while so your processes and practices should already be compliant. Things will only get tougher if you lose focus and leave yourself open to claims.

Digging Deep

“I’ve hired two employees who haven’t worked out even though their resumes and interviews seemed to fit the position exactly. How can I be more confident of my hires in the future?”

Your HR Survival Tip

Many people are either inexperienced with interviewing candidates or they just aren’t sure what to ask. As with most things, being prepared can help. Every interview has a standard set of questions but every position should also have a set of specific questions to help judge the candidate’s skills for that job.

We often see the same set of questions used for every position. Or the interviewer reads the resume and assumes skills that may not be there. It is up to you to dig deeper when interviewing to ensure this candidate can actually do what the resume says they can do.

As an example of digging deep based on a job description, we’ll use the job of Marketing and Sales Coordinator. One of this position’s principal responsibilities is: “Prepare correspondence, presentations, reports, and other documents as requested, using Microsoft Word, PowerPoint, and Excel. Coordinate and fulfill requests for field correspondence and follow up on field sales activities as needed.” Below are questions we’d ask:

  • Describe the types of correspondence you have recently worked on, whether you created the correspondence yourself or edited someone else’s work, and how the correspondence was delivered.

  • Describe the last two presentations you worked on, who and what they were for, what programs you used, and how much formatting was involved.

  • Describe the type of reports you have done, your role in the creation of the reports, what programs you used, and why the reports were created.

  • Describe your experiences using Microsoft Word to create tables within documents and what the documents were for.

  • Describe the time you have used MS PowerPoint, why you used it, and any special formatting you added.

  • Describe your experiences interacting with off-site personnel, including the frequency and type of personnel.

  • Describe the type of interaction you have had with inside and field sales personnel, including what you did for them.

  • Describe a time when you prepared documents for a person with better grammar or computer skills than you had, and what was done about it.

  • Describe a time when your supervisor returned your work with red ink all over it, what you did wrong, and how you ensured it wouldn’t happen again.

  • Describe a time when speed was more important than accuracy, what the project was, and what was done about the accuracy.

If you look online or in a book store, there are hundreds of books available to help candidates answer questions in a way that will help them get hired. However, it’s much harder to find books that will help the interviewer ask the appropriate questions so the candidate’s “book responses” aren’t usable and they must create their own answer. It helps if you think through the actual work then ask questions that will help you understand whether this candidate has actually done that work successfully and can repeat that success.

Meal Break Costs are Rising

“If my hourly employees miss their meal break, why do I have to pay them an hour instead of the half-hour they would have taken?”

Your HR Survival Tip

California requires companies to pay a premium when non-exempt (hourly) employees either miss a meal break, take it late, or don’t take the mandatory 30 minutes. Regardless of how long the meal break is normally, the premium is always based on an hour.

The premium used to be one hour of their base hourly rate but a recent California Supreme Court decision has added to that rate, based on definitions. There are legal definitions and differences in California of an employee’s “regular” rate of pay versus their “hourly” rate. Many companies use those terms interchangeably but shouldn’t because they are often different amounts.

The hourly rate of pay is what you’ve agreed to pay an employee to work for you. The employee may even have more than one rate, due to different types of work. Even so, it’s a flat amount you have agreed upon for hours worked.

The regular rate of pay is a calculation. Whenever you see “regular” used, understand it is not a flat amount because it includes other types of pay an employee may receive.

Calculating the regular rate used for this premium is a matter of finding the weighted average of that employee’s pay over a period of time. Included in the regular rate calculations are the base hourly earnings, commissions, production bonuses, piece work earnings, per diem reimbursements, and any non-discretionary bonuses. When doing the math, it’s just as important to understand what is not included, such as paid time off, reporting time, expense reimbursements, overtime premiums, and discretionary bonuses.

You may find calculating the regular rate takes a bit of time at first as you determine what forms of pay your employees might receive. However, it is a good skill to master now that it must be used for the meal break premium. Make sure premium payments are combined on a separate line on the wage statement (pay stub) so you have proof of payment. Since this court decision will allow employees to make a claim for your past mistakes and miscalculations, it’s definitely time to review and correct or update your pay practices.

Working Interviews

“I have a candidate work for a couple of days as a trial period. If I like them, I hire them. If I don’t, I pay them cash for the time worked. This has worked well for me so far.”

Your HR Survival Tip

In California, there is no such thing as a pay-in-cash trial period. There are interviews, tests, and other things you can do while making a hiring decision. But there are no trial periods where the employee actually works for you as part of the interview process.

When someone performs actual work for you, there are really only three options:

  • Volunteers — These are people who are unpaid but work to help out your organization. Only non-profits can have an unpaid volunteer. If you aren’t a non-profit, they must be a paid employee.

  • Employees — We all know this is someone on your payroll. They can be temporary, part-time, full-time, hourly, salaried, and whatever combination you choose. However, you and they are paying taxes on the money you pay them and they receive a W2.

  • Contractors — There have been many changes to the definition of who qualifies as a contractor. The basics are still holding strong… they operate as a business and offer similar services to other companies, they aren’t duplicating what employees do, and they have control over their work and time.

When paying cash for that trial period, you are legally acting as if this person is a qualified contractor. What happens the next time that person files for unemployment and lists you as one of their employers? They are thinking that the trial period is the same as a temp job. EDD (CA’s Economic Development Division) will ask why you weren’t paying payroll taxes. Then IRS will ask the same thing.

The proper way to have a trial period is to hire them for a trial period. You can do the minimum paperwork initially and then complete the rest a couple of days later if it’s working out. If your trial period is more than 1-2 days, how you explain it or what you put in the offer letter is the only difference between hiring them versus hiring any other employee.

There are no particular legal protections for you when you fire someone after 2 days or 2 years. In either case, you made a business decision and should have a legal reason for terminating their employment. Trial periods can be a great way to ensure the employee is giving you their best and you are paying attention to what they can and can’t do. Just make sure you aren’t causing more problems for your company by doing these trial periods illegally.

Timing is Everything

“I thought I understood the timing for breaks, final checks, etc. but now I’m not so sure. What does California want?”

Your HR Survival Tip

Contrary to Federal law, California law is very specific when it comes to minutes and even seconds. They don’t vary, which helps, but you do need to understand the language.

Here are a few examples showing how detailed California can be:

  • Meal Breaks — If an employee is due a meal break, it must be at least 30 minutes in length and start within the first 5 hours of work. Within 5 hours means the employee must clock out for that meal break no later than 4 hours 59 minutes from when they clocked in. Once the clock hits that 5th hour, the meal break is considered late and you owe the employee one hour of premium pay that day for the late meal break.

  • Six-Hour Days — An employee does not need a meal break if they are working less than 6 hours that day. Again, this means they must clock out no later than 5 hours 59 minutes from when they clocked in. Once the clock hits 6 hours, you’ll owe one hour of premium pay for a missed meal break.

  • Paychecks — Paychecks must be received by the employee on the day you’ve set. This is written on the employment law poster and in the Wage Theft Notice employees receive. You can choose to either pay employees the business day before or the business day after holidays but you then stick to that policy going forward. Failure to pay an employee on time can easily result in a fine that is charged per employee per paycheck.

  • Final Paycheck with Notice — When you have at least 72 hours notice of someone quitting, you must provide their final paycheck on their last day of work… or continue paying their average earnings each additional day that goes by until they get that paycheck. Using direct deposit is not recommended because their final pay will usually end up late.

  • Final Paycheck without Notice — When an employee leaves the job abruptly, you have exactly 72 hours from the time the employee left to get a final paycheck in their hands. That’s not 3 business days, that’s 72 hours. Have a process in place that will allow you to quickly produce a final check.

  • After-Hours Texts, etc. — California’s Supreme Court decided employees in California must be paid for every second they are doing anything work-related. When you send a text, email, or voicemail to an hourly employee who isn’t working at that moment, be prepared to pay for that time. If checking what you sent causes the employee to go over their 8 hours, you’ll owe overtime.

An employee cannot legally waive their right to timely payments or money owed them so don’t assume you won’t get in trouble just because the employee said it was fine. Review your policies and practices and make sure your managers understand the importance of timing.