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  [click to read more …]

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  [click to read more …]

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  [click to read more …]

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  [click to read more …]

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  [click to read more …]

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  [click to read more …]

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.

 [click to read more …]

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  [click to read more …]

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”  [click to read more …]

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.”  [click to read more …]