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.

Less Than the Ideal Candidate

“I hired Tony about 4 weeks ago but now realize he doesn’t have skills at the level I expected or need. What are my options?”

Your HR Survival Tip

It can be difficult to find and hire the ideal person. Many candidates have spent more effort in improving their interview skills than their job skills. Once you’ve discovered the employee has fewer skills or knowledge than you thought, you have decisions to make.

The decisions are based on informing Tony he doesn’t meet expectations and talking through your decision. This can be a difficult conversation so be prepared to explain what you expected versus what you’ve found Tony can do. You can then either inform Tony of your decision or offer him options:

  • You can just let Tony continue to muddle through and see if he magically improves. Unfortunately, we see this too often simply because people don’t want to have to go through the recruiting and interviewing process again so soon. What you don’t think about is the other employees who notice Tony isn’t holding up his end and wonder why they bother to work so hard for you. This option merely adds to your problems.

  • If you can use someone with less skill, consider keeping Tony but at a lower wage and title. He may grow into the employee you need. This works best if there is at least one other employee who can help teach Tony.

  • You can provide a PIP (performance improvement plan) that gives Tony 30-90 days to get up to speed. If you originally had a job description (which is always recommended), you can use that as the basis for what you need and expect from him. A PIP is explicit and has deadlines throughout. This can be great if your company likes to give people a chance to improve or to prove they can do the work.

  • You can admit to making a mistake and terminate Tony. Making a bad hiring decision happens to everyone occasionally but the fault is more on the interviewer than the candidate because you needed to ask better questions to confirm his skills were at the required level. Developing a good interview takes time and practice so try to learn from any hiring mistakes.

Rather than spending time making bad hiring decisions, spend time learning how to interview better. There are techniques you can learn to help drill down when interviewing so you better understand each candidate’s true skill level. Ask others in the company to also interview your candidates so you can compare notes. The process of replacing a bad hire is costly, both in time and money. Yet managers will typically spend a lot more time and effort researching and justifying a new piece of equipment than they do when hiring an employee. Why is that?

Too Much Time Off

“I have an employee who has used all their paid sick time for the year, plus all their vacation time. She now takes unpaid time off but provides doctor’s notes and has good excuses, such as a relative who died, continued health issues, etc. However, I really need her at work. What are my options?”

Your HR Survival Tip

You are in a somewhat tricky position when an employee exceeds the allowed paid sick time. Vacation time off is easier because either they have time available or they don’t. Vacation is not intended to be an extension of sick time, so ensure employees understand they cannot just assume their request will be approved. This situation is manageable but you have to go through the steps.

When reviewing paid sick time, you need to confirm how much is allowed. While California’s state law provides 24 hours per year, numerous local sick leave laws provide more. Remote employees may be working at home where there is a local law providing more sick time than what you normally provide based on your company’s location.

You also need to review your paid sick leave policy… and, yes, you absolutely should have one. If you use accrued time off, the employee is earning a little each pay period. If you don’t have a policy that puts a limit on the maximum an employee can use each year, it makes it difficult to say the employee has used all that is allowed for the year. The law only cites a minimum you must provide, not a maximum.

Another consideration is whether the employee’s personal health issues are protected by disability laws. The bar is quite low but the law doesn’t protect conditions deemed either short-term or “curable” with proper medical care.

We can’t ask many questions while the employee still has paid sick time available. Once the employee runs out of paid sick time, it’s time to start discussing the frequency or number of absences with them. Let them know this is a problem, particularly for the job they have in the company. You may now need doctor’s notes citing the employee’s limitations, restrictions, or needed accommodations. Some accommodations are easy to provide, while others may prove impossible or just too costly. Perhaps the solution will be a different position that is more flexible.

Since CFRA (CA Family Rights Act) now covers most employees, an intermittent leave of absence may also be a possibility and includes protected time off. It’s important to have “interactive conversations” with the employee so they understand the issues and you can work together to find possible solutions. Terminating this employee should be a last resort only after you have fully explored every option with the employee.

Cal/OSHA Re-Revised Rules

Once again, we have revised regulations regarding masks at work. Cal/OSHA (California Occupational Safety and Health Agency) approved new regulations only two weeks ago and almost immediately pulled them back for further review. The biggest problem was their regs still weren’t in alignment with the CDC (Centers for Disease Control). This isn’t the first time this has happened but we don’t know why Cal/OSHA continues to send mixed messages.

The revised regulations are now in effect. There are a few changes to what was published previously and better align with the CDC recommendations. We have listed a few highlights:

  • Fully vaccinated employees no longer need to wear a mask at all indoors or outdoors, except in the case of an outbreak (3+ cases in 2 weeks).
  • Fully vaccinated employees no longer need to be quarantined if they have no symptoms, even if exposed to a positive COVID case.
  • Companies are required to have proof of vaccination if allowing employees to work without a mask. A copy of their vaccination card or a written attestation can be the proof you need but they are still discussing this. We are recommending you see and make a copy of the vaccination card for your files… and keep the copy in their confidential medical file.
  • Non-vaccinated employees and those who choose not to provide proof of vaccination must continue to wear a mask while at work or in vehicles.
  • Companies must have available N95 masks for those who request one or obtain one when requested. You may not substitute another mask or charge the employee for the mask.
  • Social distancing has basically been eliminated with a few exceptions, such as when there is a COVID outbreak, when unvaccinated employees are eating or drinking, or when an employee is unable to wear a mask due to certain conditions.

The reward for being vaccinated is freedom from masks. That may help sway those who are still on the fence about being vaccinated. However, be careful not to retaliate against employees who are not vaccinated or those who choose not to show proof of vaccination. Just revise and distribute your COVID safety policy so everyone understands the new rules and what you now expect from employees at work.

Hiring is Tough

“I’m having a very difficult time finding and hiring employees. What am I doing wrong?”

Your HR Survival Tip

Remember the days of being able to run a Craigslist ad and getting 200 replies? Oh, wait, that was only two years ago. We are hearing from every industry and at every level that companies are having a very difficult time finding employees. Our usual methods for finding new employees are not working well this year and it’s been predicted that up to 70% of employees could make a move this year. There are several reasons for that statistic:

  • Employees preferred staying with their company, if possible, last year because they were familiar with it. This year, fears of a company closing down and fears of personal safety are much lower on the list.

  • Working remotely became a requirement for many last year. This year, a lot of those employees are now refusing to work at the office and are willing to look for a new job that allows them to continue working remotely.

  • The reasons employees stay with a company have changed. The remote work made it very difficult to maintain coworker friendships because the ability to have casual conversations disappeared. The feeling of loyalty to a company they never see anymore has been lost. This year it’s all about the employee and staying remote and higher wages have risen to the top of the list.

Instead of just hiring as you normally have, you need to review the positions and what you have to offer. You must be more creative and competitive. Can you offer a “hybrid” work policy where employees have a choice about working remotely for 1-3 days each week? Can you be more flexible in employee hours, such as offering shifts that begin anywhere between 7:00-9:00 a.m. or 8:00-10:00 a.m.? Can you add more to your benefits package that rewards retention, such as an increase in paid time off after 1-2 years? When was the last time you compared what you pay with what your competitors are paying to ensure you aren’t below the current wages being offered?

When looking for new employees, you need to be open to new resources and methods. Running ads on Craigslist.com and Indeed.com isn’t enough anymore. Consider marketing your company in a way that highlights what you have to offer as an employer and in places applicants will notice, such as on social media. Consider offering a finder’s fee to current employees who bring in an applicant who is hired. Ask your current employees which resources they would use if they were looking for a new job.

We know LinkedIn has been a passive resource for candidates but it’s time to expand. Some of the social media sites companies are beginning to use include Facebook groups to more directly approach potential candidates, YouTube video presentations showing what you have to offer, Reddit when you have a good marketing pitch, and even TikTok if you’re targeting recent grads. Instead of just putting the job description out there, consider a short video actually discussing the role.

Employees at every level are being hired away for a substantial increase in wages. Are you confident you’re doing the best you can for your employees? You need to be prepared to not only be competitive when hiring but to also make sure your existing employees know you are appreciative of their efforts and that you want to keep them. You’ll need to be proactive and creative to win this competition.

Latest Cal/OSHA Rules

“I’m so confused about COVID precautions as my employees are returning to the office. What’s the latest?”

Your HR Survival Tip

By now, everyone is used to COVID-related information changing frequently. In fact, we are so used to the constant changes that we believe a lot of companies aren’t paying attention anymore. As vaccinations increase and positive cases go down, it’s understandable. However, Cal/OSHA is still trying to make the workplace safe and has issued new regulations that begin June 15th. Cal/OSHA is the California division of OSHA Occupational Safety and Health Administration.

We have provided a simplified list but it may pay to review all the regulations.

  • Masks, part 1 — Fully vaccinated people do not need to wear a mask anywhere… except when they are working indoors with unvaccinated coworkers. Unless everyone has been vaccinated, you must still adhere to wearing masks at work and maintaining social distancing.

  • Masks, part 2 — Companies are required to stock and provide N95 masks for employees who have not been vaccinated (at no cost to the employee). This new regulation requires you to offer only N95 masks at work. However, the use of the N95 masks is voluntary for employees who have not been vaccinated. This is the same mask that was in such demand by hospital personnel last year.

  • Social Distancing — This will no longer be required after July 31st, but you must continue social distancing until then.

  • Vaccination Proof — If you are dropping any COVID safety rules because your employees are “fully vaccinated,” you’ll be required to have proof from employees of vaccinations. There are still discussions going on as to what documentation is allowed or required but, for now, a copy of their vaccination card should work. Keep these in a confidential file as you would any other medical document.

  • Exposures and Symptoms — Fully vaccinated employees no longer need to be tested or quarantined even if they are exposed to COVID. Employees who have not been vaccinated must be provided company-paid testing and, possibly, paid time off to quarantine.

  • Notice to Employees — You are required to verbally inform certain employees about these new rules. If the employee has a limited ability to read published notices, tell them what the notice says to ensure understanding.

Compared to what we’ve gone through over the past 1.5 years, the new regs aren’t too bad. It is generally understood Cal/OSHA’s new regulations don’t exactly line up with CDC advice. However, if you have employees in California, Cal/OSHA rules.

Hybrid Work Stats

“I can’t decide what I want to do with my employees now that they can work in the office again. Any ideas?”

Your HR Survival Tip

This has been a huge topic of conversation among companies of all sizes. Employees have now gotten used to working remotely and are being more resistant than ever to returning to the office. Let’s look at a few statistics:

  • 90% of organizations will be changing to a hybrid model combining on-site and remote work.

  • 10% will continue fully on-site and only 3% will continue fully remote, even though they were fully on-site before COVID.

  • 68% of organizations still don’t have a detailed plan laid out for the hybrid model.

  • 36% are either discussing broad concepts or haven’t even started thinking about it.

  • 51% of employees significantly improved their personal productivity when working remotely.

  • 35% of customers felt there was a significant improvement in customer service.

  • 50% of leaders have ideas on how managers should lead remote workers differently and have been training those managers.

If you feel like you’re falling behind on getting a plan in place, you’re not. While everyone is thinking about it, not everyone is ready with a plan. However, the time is now. Start with assessing your processes and determine which changes need to be implemented to make those processes work well in a hybrid company. You also need to give serious thought to communication within your organization because it will need to be more deliberate than it was when everyone was on-site.

One of the other changes you’ll need to make is teaching your leads and managers how to manage remotely, measure productivity, and develop their teams. Communication by phone, chat, or email is much harder because the body language is missing and those visuals represent a great deal of the message itself. Even if you didn’t provide manager training previously, we believe it is a wise investment for the future.

Rescinding Offer Letters

“I gave a candidate an offer letter but they haven’t yet accepted and I want to move on to another candidate. How do I make the switch?”

Your HR Survival Tip

A written offer letter is often desirable because it can protect your company by ensuring your offer is not misunderstood. In some situations, such as when you want to run a background check, California requires a written offer letter to be provided first. In that case, you add a contingency clause.

An offer letter may be viewed as a contract between your company and the candidate. This is why you want to be comfortable with the offer and confident this candidate is the right person for the job. Many candidates will provide notice to a current employer once they have the offer in hand and, after that, it’s very hard for the candidate to reverse the resignation and still have a good working relationship with that employer.

Once your offer has been sent to the candidate, there are only a couple of ways to easily rescind the offer with no real risk:

  • Your offer should have a response deadline. We prefer three calendar days because that’s plenty of time if the candidate is truly interested in the job. They had time to learn about your company throughout the interview process prior to receiving the offer. If the candidate is unsure or waiting for an offer from the other company that interviewed them, you want to be able to move on as quickly as possible to your next candidate. Or you can offer an extension if the deadline passes and the candidate has provided reasonable justification for needing more time. We have clients whose offer letters state the candidate should not give notice or assume the offer is final until they get confirmation from the company.

  • One of the contingencies in the offer didn’t turn out as you hoped. If you run background checks, remember California is very particular about how and what information on that report can be used to rescind your offer. Consider using other or additional types of contingencies, such as reference checks, employment confirmation (per what they listed on the application), or confirmation of degrees or certifications.

If your reason for rescinding the offer is based on you having second thoughts about the candidate, the timing could make a big difference. As mentioned, once that candidate informs their current employer, you now may be the cause for the candidate having no job at all. The candidate could claim you broke the “contract.” Doing your due diligence in the interview process should help avoid second thoughts after the offer has been sent.

There will be times when you’re excited about the candidate when you make the offer but the candidate’s behavior then starts giving you second thoughts. Behaviors that worry us a bit include a lack of excitement from the candidate about the offer, failure to communicate what and why they need to think about it, or their method and timing of communications to you. Often, but not always, you may have missed these clues during the interviewing process. Adding more questions during the interview about what the candidate wants, whether they are considering other offers at this time, what issues might delay their acceptance of any offer, their timing for starting a new job, etc. may help avoid any awkwardness once the offer is made.

Overall, it’s best to avoid putting yourself in a situation where rescinding an offer is necessary or desirable. Right now candidates are calling the shots so don’t be surprised if a candidate accepts your offer, then informs you they are accepting a different offer. We can’t do anything about it when the candidate changes their mind but you could be held responsible for any negative results when you rescind an offer. Take just a little more time upfront to be confident about your choice when making an offer.

Masks On or Off

“I know many places are no longer requiring masks but I’m confused about how to make it safe for employees.”

Your HR Survival Tip

COVID’s evolution has kept all of us confused for nearly 1.5 years. The latest information from the CDC (Centers for Disease Control) is great news for those who have been vaccinated. However, masks and distancing are still strongly recommended for those refusing or unable to get vaccinated. Also, California is still enforcing the mask mandate until June 15th so don’t drop those masks too early.

While some companies are no longer requiring masks at work, you need to decide for yourself whether or not this is in your favor. California still has several laws and regulations in place making it the company’s responsibility to pay for quarantines and report cases to workers’ comp carriers. If you no longer require masks, will your risk and costs increase? Those vaccinated will be protected but what about the unvaccinated?

Some companies are choosing to follow the mask mandate in general. However, if an employee chooses to share their vaccination proof with the company, they will be allowed to work without a mask. This means some vaccinated employees will continue to wear masks if they don’t want to provide proof of vaccination, but that’s their choice. This makes sense but will people feel targeted? And who gets assigned to be the mask enforcer?

Technically, it’s fairly easy to segregate those without vaccinations from those who have been vaccinated. Legally, will it appear the unvaccinated are being discriminated against? You can offer the unvaccinated the opportunity to continue working remotely so they aren’t at risk. However, what if they don’t want to, or what if you actually need them in the office?

When we look at our options, there is no clear answer. We have heard of ultimatums to be vaccinated or fired. We have heard of companies trying to keep everyone remote. We have heard of companies setting a return to the office deadline. Companies are trying to decide what works best for them and their employees and that’s what you need to do. Start by reviewing what the company needs, then look at what the employees would like… do they match up, or are decisions needed?