It’s Not a Good Fit

“When I fire someone, I just tell them it’s not a good fit. But do I need to tell them anything?”

Your HR Survival Tip

California and several other states have an at-will employment law. This means either you or the employee can end the employment relationship at any time and for any reason, with or without notice. That’s the letter of the law. However, how it plays out in court is very different. In reality, it’s only the employee who has that much freedom.

As the employer, you really do want a reason… a legal reason… when firing someone. You also want to give the employee that reason. If you don’t, they will make up their own reason and it will likely put you in a bad light. The employee will give “their” reason when filing for unemployment, when interviewing elsewhere, and possibly when talking with an attorney. Why would you want to be in that position when it’s not necessary?

Be honest. You can usually tell if someone’s not a good fit within the first 30 days. Even then, there are specifics about why they aren’t a good fit. They don’t get along with their coworkers, they aren’t a team player, they aren’t on time for work, they prefer doing things their way instead of your way, they don’t communicate well, etc. It may take a while longer before you know whether or not they can actually do the work but that’s a little different.

If you have a problem employee, you should be having weekly meetings with them about the issues you’re seeing and what your expectations are for changes. The first discussion is just that, a conversation. If you need to talk again about the same problem, recognize you may not be providing the information in a manner they “hear.” Some people are great at hearing and understanding something, others are visual and want to review it in writing, and some do best when physically doing the work instead of watching you do it. Don’t assume they are just being stubborn. Ask them how they would best understand and retain the information.

So, if the first conversation didn’t get the results you want, try having another conversation and having the employee provide you a written summary afterward. If that doesn’t help, ask them to do the work while you watch so you can see where and when the problem happens. Bottom line, you want this employee to recognize there really is a problem that needs correcting. Without that recognition, they will assume they are doing good work.

If none of your attempts have worked and you’re ready to fire them, ask yourself what HR would ask: Let me see what’s in their employee file (written documentation). Tell me about the conversations you’ve had with the employee (demonstrating you’ve actually tried to correct the problem). Have you told the employee their job is at risk if the problem isn’t fixed?

The worst type of firing is when the employee is surprised they are being fired. At that point, they should be expecting it and only the timing is a surprise. By the time you’re ready to fire, you should be able to provide them with the simplest, most legal reason for being let go. We are not in favor of putting that reason in writing simply because it can get twisted if not perfectly written and there is just no legal need to put it in writing. It is sufficient that you are able to articulate the reason in one sentence: You are consistently late to work and we have told you why it’s important but you continue to arrive late at least twice a week. You are creating problems at the job site because you are insubordinate with your supervisor even though you know this is not tolerated. You are not working at the pace needed for this position and it’s resulting in work being completed late and affecting our project deadlines. When interviewing, you said you know how to use this software but it’s been 3 months and you have not demonstrated that knowledge. As you are aware, we have worked with you to change certain behaviors but we haven’t seen the changes last more than a week or two and we are done trying.

While this is an at-will state, assume you can’t use that defense. Instead, do a better job of managing employee performance so you aren’t putting the company at risk with a weak excuse for firing an employee. When it becomes inevitable you’ll need to fire that employee, work on what you’ll say in that one sentence to provide the simplest, most legal reason.

Wage Theft

“I know I must provide a notice to new hires about wage theft but I don’t really understand it myself so I can’t explain it to my employees. What is it?”

Your HR Survival Tip

California’s Wage Theft Protection Act went into effect on 1/1/2012. This started because employees didn’t fully understand their pay stubs and couldn’t tell if they were being paid appropriately. The Act forced companies to provide the information in a way that was easy to read. Thus, the notice.

The DIR (California’s Department of Industrial Relations) uses the Labor Commissioner’s Office to fight for employees who are not being paid properly by their employers. An example of this was a case that reached a settlement last fall. A Bay Area restaurant owed 133 workers for unpaid minimum wage, overtime, and split shifts premiums. California considers this a theft of wages due to the employees. The original assessments and penalties came to $5.16 million but the final settlement ended up at $2.6 million.

How do you make sure you avoid something similar? Even employees who receive tips have a minimum wage that must be paid for all hours worked. In California, you also pay 1.5 times their hourly wage when they work overtime… which is any time over 8 hours in a day or more than 40 “regular” hours in a week.

The split shift pay comes into play when a company requires an employee to take more than an hour between the first part of their shift and the second part. A restaurant example is if you were asked to work the lunch shift from 10a-2pm, then required to come back for the dinner shift from 5pm-10pm. That required 3-hour gap is considered a split shift. California has a specific calculation you must use to determine how much extra money the employee should be paid for that split shift.

Avoid putting your company at risk by ensuring you are compliant with all pay requirements. The wage theft notice we give employees provides, as an attorney once said, everything an employee needs to be able to sue you. Make sure your processes and the notice are in sync so you aren’t open to claims.

COVID Risk Levels

“I keep hearing about low risk, high risk, etc. related to COVID-19 but I don’t know what they mean.”

Your HR Survival Tip

Many of the things we’ve heard relating to COVID-19 have been confusing. This is because the laws and regulations keep changing as the infection rates increase or more is learned about COVID. The Federal Occupational Safety and Health Administration (OSHA) has provided the following to help us:

  • Lower Exposure Risk — Given to jobs that do not require close contact with other people. This level is typical of remote workers (i.e., those working from home during the pandemic); office workers who do not have frequent close contact with coworkers, customers, or the public; and healthcare workers providing only telemedicine services.

  • Medium Exposure Risk — Given to jobs that require either frequent close contact or sustained close contact with other people in areas where COVID is transmitted from community to community. Typical of this level are workers who have frequent or sustained contact with coworkers or the public, including under close working conditions outdoors or in well ventilated indoor workplaces; and those living in shared housing facilities.

  • High Exposure Risk — Given to jobs with a potential for exposure to known or suspected sources of SARS-CoV-2 or exposed to people with known or suspected COVID-19. This includes healthcare delivery and support staff, medical transport workers, mortuary workers, and those workers who have frequent or sustained contact with coworkers or the public under close working conditions indoors or in poorly ventilated spaces or workplaces.

  • Very High Exposure Risk — Given to jobs with a very high potential for exposure to known or suspected sources of SARS-CoV-2 during specific medical, postmortem, or laboratory procedures. This level is typical of healthcare workers performing aerosol-generating procedures or collecting or handling specimens, and morgue workers performing autopsies.

As a reminder, “close contact” is defined as being within 6 feet of a positive person for a total of 15 minutes or more over a 24-hour period. An employee can easily infect others before they even know they are positive. While it’s impossible to completely eliminate risk even with the best prevention practices, you can definitely help protect your employees by simply ensuring everyone is wearing a mask whenever they are within 6 feet of someone else… without exception. Even though we’ve been dealing with COVID for too long, you can’t afford to stop enforcing your protocols.

Retroactive ABC Test

“I have two contractors that I’ve been using for quite a while. Is it true that a recent ruling might make me susceptible to a retroactive lawsuit if California doesn’t believe they are legitimate contractors?”

Your HR Survival Tip

We have seen many changes to our use of independent contractors over the past three years. California has always assumed a worker is an employee and it’s up to the company to prove otherwise. If you classify someone as a contractor and CA disagrees, it’s considered a “misclassification” with associated fines and penalties.

The standard used for many years was the Borello test that included 20 determination points, with a focus on the amount of control the company had over the contractor and their compensation. Then the CA Supreme Court introduced the ABC test in 2018 during the Dynamex case and the use of contractors was forever altered.

The ABC test focuses on classification standards under California’s wage orders. This test resulted in a very short list of acceptable uses for contractors and who qualified as a contractor. Then AB5 was passed and the door for contractors opened a bit. Proposition 22 opened the door even wider, affecting gig drivers for companies like Uber, Lyft, GrubHub, etc. Both these laws list who may qualify as a contractor but, as usual, it’s never completely black and white.

The problem areas we see in determining whether a contractor would be viewed as such by California are primarily two-fold:

  • First, is that contractor operating as a regular business? Do they have a business name, are they marketing that business, do they provide similar services to multiple clients, and are they bringing expertise to your business that you don’t have?

  • Second, is that contractor involved in your basic business operations to make your product or to service your clients? If so, they may be too involved and could be considered an employee by the state.

The most recent CA Supreme Court decision states the ABC test will likely be retroactive for all currently pending misclassification lawsuits and similar cases that will be filed in the next year or so. The simple explanation is that you need to be even more careful when hiring a contractor than ever before because the courts are locking this issue down.

Agency Scramble

“I often hear about one government agency or another but I can’t keep it straight on who does what. Can you help?”

Your HR Survival Tip

It can be confusing but it’s also an important thing to know when you operate a business in California. While we try to provide the agency name at least once when using acronyms, not everyone does.

As you may have guessed, California has many more laws than the Federal government or its own version of laws. This means you need to be careful about the source of your information. If you hear about a legal change, you want to make sure you’ve heard California’s version of it because it’s likely to be different than the Federal version. The following may help you:

  • Labor Law — This is the branch of government dealing with all things about employees, such as labor law, safety and health, workers’ compensation, etc. The Feds call their agency the Department of Labor (DOL). California calls theirs the Department of Industrial Relations (DIR). Under the DIR is the Labor Commissioner’s Office that will (for free) help an employee get any wages due them.

  • Civil Rights — The Feds use the U.S. Equal Employment Opportunity Commission (EEOC) to deal specifically with claims of discrimination and harassment. In California, the Department of Fair Employment and Housing (DFEH) focuses on discrimination in employment, housing, businesses, bias-motivated violence, and human trafficking. The DFEH is the agency that would also manage an employee’s claim about their right to a family/medical leave.

  • Wages — Did you know the Fed’s Internal Revenue Service (IRS) is where you can find the Federal rules about earnings, deductions, and other items involving money? In California, it’s actually the Employment Development Department (EDD) that is concerned about how, when, and what you pay employees. The EDD also manages unemployment and state supplemental pay, such as state disability and paid family leave.

  • Safety — The Federal government’s Occupational Safety and Health Administration (OSHA) is managed by the DOL. California’s version is the Division of Occupational Safety and Health (Cal/OSHA) and is managed by the DIR.

We hope this explanation makes it easier to understand which agency does what. One thing to remember is that all these agencies use the U.S. Post Office to initially communicate with you. They may continue a discussion by email or phone but that is never the way they first contact you about an issue.

Using Direct Deposit for a Final Paycheck

“Why can’t I use direct deposit for a final paycheck?”

Your HR Survival Tip

The simple answer is that you usually won’t be compliant with the law. Of course, there are exceptions, based on how your payroll is processed.

When you review the legal requirements, it becomes easier to understand what you need to do. The big thing to remember is, if you are late with a final paycheck, you must keep paying the employee until you can get that final check in their hands. The Labor Commissioner is happy to help the employee get the money that’s due plus the daily penalty. Here is the timing for each situation:

  • Employee is fired — You must provide a final paycheck that same day. On a side note, if you have the employee come to work just to be fired, you must make sure reporting time pay has been added to that check. Reporting time pay is half their scheduled time but no less than 2 hours and no more than 4 hours. If the employee normally works an 8-hour day, their reporting time pay must be 4 hours.

  • Employee has resigned — You must provide a final paycheck on the last day they are working if they provided more than 3 days’ notice. If you decide you’d rather they leave immediately, you have legally changed their resignation to a firing. This means you (a) owe them the final paycheck that day, and (b) have made them eligible for unemployment because they were fired.

  • Employee stormed off the job — If you weren’t given notice, you only have 72 hours to get that employee a final paycheck. That is 3 days but it’s calendar days, not business days. This is always a challenge when the employee walks off on a Friday. You need to get that check ready and sent that day for overnight delivery.

Most companies use an external payroll processor that needs 1-3 days for a direct deposit. This timing doesn’t work with the final paycheck timing so, if this is your situation, you need to plan for another way to provide that final paycheck. It’s easiest to learn how to create a manual check within your payroll system and how to print a copy of the pay stub (wage statement). Then, the next time you run payroll, the system processes it so all the income and taxes are recorded properly.

There is no reason to take a chance with direct deposit. It may seem easier to you but that will only last as long as it takes for the Labor Commissioner to notify you of a claim of late payment. Develop a process that’s simple and legal.

How to Document and Track Your CFRA Leaves

Tuesday, 1/26/2021, 9-10 a.m.
$49 for 1-Hour Live Webinar

Is This Webinar for You?

  • YES, if you will be subject to this law (5+ employees). 
  • YES, if you want to learn to manage leaves yourself (instead of paying us).

About this Webinar

This training is designed for companies with 5 or more employees anywhere… who also have employees working in California. The revisions to California’s Family Rights Act (CFRA) are now in effect so you need to be prepared to manage your first leave of absence. Join us to learn how you can manage CFRA leaves yourself.

  • Learn what is legally required to be in writing.
  • Be able to plan the deadlines for documents and return to work.
  • Learn our method for tracking a leave.
  • Notification templates and our tracking tool will be provided.

Presented by Candi Freed, Senior HR Consultant with HR Jungle LLC.

Reporting COVID

As positive COVID cases continue to rise, we want to remind everyone of your reporting requirements. This was simpler a few months ago but new laws have been layered upon old laws and now reporting is more tedious. If you have an employee testing positive (and who doesn’t just work from home), you must make several reports and notifications now and even more as of 1/1/2021.

Most importantly, only the DWC-1 form below has the positive case employee’s name on it. Every other document should only use an identifier code, not the employee’s name.

Within one business day of a positive test result:

  • Have the employee complete a DWC-1 regarding how they believe they were exposed. This stays in your files.

  • Provide written notice to all employees (and contractors and contractor’s companies) who were on that worksite within the infectious period that they may have been exposed to COVID-19. The infectious period is 2 days before the first symptom/test and approximately 10 days after.

  • Provide written notice to all employees who may have been exposed explaining COVID-related benefits they may be entitled to from you and from state/federal governments, such as paid time off to quarantine.

  • Provide written notice to all employees about your disinfection and safety plans.

The next reporting requirements are:

  • Within 48 hours, notify your County Health Department.

  • As soon as possible, report the positive case to your workers’ compensation carrier without using the employee’s name but include the date they were tested, the worksite address, and the highest number of employees who reported to that worksite over the preceding 45 days.

We are hearing about too many positive cases and exposures but this was, unfortunately, expected after Thanksgiving. Unless you want to be paying employees to quarantine, please work hard to enforce your safety protocols. Also, reinforce the need for personal safety over the holidays. It’s hard to stay home when the family tradition has been to gather and enjoy time together. However, celebrations with only the members of your household are the safest and best way to ensure everyone remains healthy for the new year.

Latest COVID Information

“I’m so confused about all the rules out there for COVID. Can you simplify it for me?”

Your HR Survival Tip

Don’t feel like you’re alone. You’re confused because the laws and regulations are piling on top of each other instead of business owners receiving one clear message. While we will try to provide a few tips and insights here, this topic has moved into OSHA’s (Occupational Safety and Health Administration) domain rather than employment law (our specialty). Therefore, we strongly recommend you talk with your Safety Manager or outsourced safety company.

Cal/OSHA is California’s version of OSHA but with a few additions to the Federal rules. On 11/30/2020, Cal/OSHA approved new regulations that went into effect immediately. Some of those regulations are contrary to what the CDC (Centers for Disease Control) uses but we must follow Cal/OSHA rules until they update them. The best thing about these regs were the definitions provided:

  • A COVID-19 “case” is defined as someone who has tested positive, with or without symptoms, employee or non-employee.

  • Close contact” is defined as being within six (6) feet of someone for, or more than, 15 minutes total in a 24-hour period regardless of wearing masks.

  • The “exposure period” is the period of 48 hours prior to the onset of symptoms or the positive test (whichever was first) of the “case” and for up to 10 days after the positive test.

  • An “exposure” is defined as someone who has had “close contact” with a “case” during the “exposure period.”

  • Quarantine” is 14 days from first symptoms, a positive test, or exposure. Yes, the CDC has a shorter time but you must follow Cal/OSHA rules.

Make sure you train your employees to inform you if they either start having symptoms that could be COVID, test positive, or are exposed. Also, make sure your employees understand they must immediately quarantine and not come to work. The employee is allowed to work remotely, if possible. Once the Case or Exposure is in quarantine, you must start tracking and doing notifications.

  • If the Exposure is an employee, you can have them tested but they must stay in quarantine regardless of the results.

  • If the Case is an employee, find out where the Case has been working and whom they might have had Close Contact with during the exposure period.

  • You cannot state the name of the Case/Exposure due to CA’s privacy laws. However, you can tell those who were around the Case that someone they were around has tested positive. Determine whether they had Close Contact with the Case and are another Exposure.

  • When doing tracking and notifications, you’ll need to consider external locations where the Case might have had Close Contact with workers in other companies. You do need to notify that company if there was Close Contact possible but, in many situations, you need to let them know even if there wasn’t.

Although the documentation isn’t going to be discussed here, keep in mind that you must notify the County Health Department and your workers’ compensation carrier about a Case. The Case will also have to be reported on your OSHA Log. Have your Case/Exposure complete a DWC-1 form and write a brief summary of exactly when and how they were exposed within 24 hours. There will be required written notifications as of 1/1/2021 and a previous law has the tracking continuing through 2022 so it’s best to develop a good tracking system now.

Within 5 Hours

“I’m confused about how to calculate when employees need to start their meal break.”

Your HR Survival Tip

California is very specific about the timing of the meal and rest breaks for non-exempt (hourly) employees so it’s important you understand the law.

The 30-minute unpaid meal break must begin WITHIN the first 5 hours of an employee’s day. This means you must have them clock out on or before 4 hours and 59 minutes from clocking in that day. Once the timeclock hits 5 hours from clock in time, they are late with their meal period and owed one hour of premium pay that day. You are expected to enforce the meal break so you should seriously consider scheduling these breaks to ensure everyone starts their break within the allotted time and you have coverage for them while on break.

  • Clock in at 7:05 am requires a clock out on or before 12:04 pm.

  • Clock in at 8:30 am requires a clock out on or before 1:29 pm.

  • Clock in at 9:00 am requires a clock out on or before 1:59 pm.

A 10-minute paid rest break is available to the employee when they work “the greater of a 4-hour period.” While you can’t restrict what they do and where they go on a rest break, you can let them know they won’t be paid any extra time taken. It is only 10 minutes. An exception is if the distance to and from your own break room would make 10 minutes unreasonable. The rest break relies less on enforcement and more on making sure your employees know the breaks are available and they are allowed to take them. If employees state they aren’t allowed to take their rest breaks, you may have to pay an hour of premium pay so be sure everyone knows how to get their breaks. Again, you are allowed to schedule these.

Premium pay is paid at their regular rate of pay and should be on the wage statement (pay stub) as a separate line item so you have proof you’ve paid it. “Regular” rate of pay legally means their average hourly rate for the week if they earn different hourly rates. If your company rounds clock in/out times, remember that is only how you’re calculating their pay. Don’t use rounding when calculating whether or not they get the premium pay. The meal break is different and the law is very clear about that 5 hours. Let us know if you’d like help putting all of this in a written policy to ensure compliance.