Tool Time

“I’ve always provided the tools my field employees need. Then an employee told me a previous employer made employees use their own tools. How can I implement that?”

Your HR Survival Tip

As you may have noticed, there seem to be laws or lawsuits for nearly everything employment-related in California. There are three things to consider when you have employees who use or need tools in the field:

  1. Employer-provided tools — You provide all the tools, including maintaining and replacing them. You are not able to charge employees for the replacement of lost tools so consider a check-out/check-in system to track your tools.
  2. Employee’s tools — In California, you are only able to require employees to use their own tools on the job if you are paying those employees at least twice the state minimum wage (currently $24 or $26 per hour, depending on company size). If you have employees earning less than that, you are responsible for the tools.
  3. Paid commute — If you have employees carrying your company tools in their personal vehicle every day, there is the possibility you may be responsible for their commute time and costs. Current lawsuits haven’t yet been settled but it appears a paid commute may depend on the amount of space the tools take up in the employee’s vehicle, whether you require the employee to keep the tools in their vehicle at all times, and whether carrying those tools impinges upon the employee’s ability to use that commute time as they wish.

Our wage and hour laws have long dictated the rule about paying the employee sufficiently if they are expected to buy and maintain their own tools. The new question about how the unpaid commute might be changed when hauling around the company’s tools is still unanswered. However, the fact is there are now lawsuits about this topic so it would be wise to explore your policies and practices to ensure you don’t end up on the wrong side of that decision.

Documenting COVID

“What do I need to track for COVID and what do I do with the information?”

Your HR Survival Tip

Running a business has become increasingly difficult as COVID rules and responsibilities keep changing. The one thing we all know is to send an employee home (or tell them not to come to work) when they have symptoms and/or test positive for COVID. But what then?

1) You follow your protocol, which should include finding and notifying those potentially exposed, cleaning the work area of the person who tested positive, etc. When warning about the exposure, you only say “someone you work with has tested positive.” While the employees may figure out who it is, the name can’t come from you due to privacy laws.

2) The next step is to notify your local health department to inform them of a positive case.

3) The last step is determining if this positive test must be reported on your Cal/OSHA Log 300 (that is posted February 1 to April 30 each year). You must list this incident if the employee misses work, is diagnosed by a doctor, has medical treatment beyond first aid, etc. These are the primary things that happen when someone tests positive so it will be surprising if you do NOT have to list the incident.

4) Only if the positive employee is hospitalized (or worse) must you report this directly to Cal/OSHA within 8 hours of learning about it.

The CA Department of Public Health (CDPH) has provided detailed information for employers that can help you with a positive result and even with your protocol. In addition, Cal/OSHA has provided useful FAQs (frequently asked questions) that can also help you know what recordkeeping is expected of you by California.

Anyone with employees in California is familiar with the ever-changing employment laws but COVID has pushed employers to the limit in many ways. In addition to running a business, you are now constantly watching for changes that reflect new information and require expanded safety protocols. Let us know if you need any help or resources.

Revamping Descriptions

“I’ve been reorganizing duties as I’ve begun bringing employees back to work. How do I let my employees know what’s now expected of them?”

Your HR Survival Tip

It seems any major financial crisis, such as a recession or pandemic, results in companies finding new and better ways to be more efficient and more profitable with fewer employees. The changes initially made are based on immediate necessity but then you realize what you’ve done can actually work well going forward. Major changes require a different approach but the following works well for tweaking workloads.

You’ll start with an initial conversation with the employee to inform them you have made changes based on business needs changing, reorganizing the workflow, reorganizing the work to better match skills…whichever reason fits your scenario. Then provide the employee with those changes via memo or updated job description.

We prefer a revised job description because it has many purposes and, in this situation, provides a better overall description of what the job now entails rather than just listing the changes. Ideally, you provide a job description to candidates when hiring, use it to keep employees focused on their responsibilities, and have it play a key role during performance reviews.

Create your job description by starting with a list of 6-8 primary responsibilities for that role. You’ll know you’ve listed the correct items if you would be satisfied with the employee if they accomplished little else. Use 1-2 sentences for each of your 8 items so you’ve encompassed the whole responsibility.

As an example, the first responsibility for a Customer Support Rep might be: Field customer calls, record complaints, assist customers with answers to their technical questions and help them resolve their product problems/inquiries following tactics outlined in standard operating procedures. Evaluate customer problems and determine the point of escalation.

You probably wanted to create at least 5 bullets for that example. However, once they answer the phone, the rest of that statement just includes the possible outcomes of that call. Therefore, it’s all one thing and it’s easy for the employee to understand this is what you’re expecting from them because it’s presented in a more cohesive manner than bullets.

There are a few more things you ultimately want to add to each job description but this is a fantastic start. Every job description needs input from the employee and management to ensure its usefulness and accuracy. Job duties change periodically and so should job descriptions. Let us know if you’d like help!

Careful v. Practical

“I don’t know how to handle all the possible exposures I’m hearing about from employees. Nothing seems to work for both the employee and my company.”

Your HR Survival Tip

Not surprisingly, companies are receiving more and more reports of employees who may have been exposed. We don’t know of any single solution that will work for everyone but we can tell you what some companies are doing.

It’s important to remember that without COVID symptoms, there is no financial help for the employee from the government. The employee must have symptoms AND be talking with a doctor or getting tested to qualify for the Families First money (emergency paid sick leave for 2 weeks).

There are three primary exposure solutions we’re hearing about but each has a negative:

  • Super Safe — You have an employee who was “possibly exposed” go into self-quarantine for 2 weeks. Give some thought about how many of your employees may be potentially exposed at any one time and that those employees won’t be paid during the quarantine period since they don’t have symptoms. The negative is the employee is unpaid for two weeks and you’re low on headcount that could affect your ability to keep things going. However, this can be a very workable solution if employees can successfully work remotely during the quarantine.
  • Careful But Practical — You have employees who were “possibly exposed” stop working until they can be tested and get the results. Some companies are paying for the testing but not for the time off while waiting for test results. The negative is the waiting time…particularly since we have heard some testing sites are not even allowing an asymptomatic employee to be tested for two weeks. Again, remote work can fill the waiting gap but, if that’s not an option, this is the fastest solution for getting employees back to work while also confirming they aren’t contaminating the other employees or worksite.
  • Practical — Unless an employee is showing symptoms, they keep working. Given the number of “possible exposures” we now have and the multitude of ways we might be exposed going forward, this may not be all bad. Overall, it seems to be the symptomatic people spreading the virus, not the asymptomatic people. The negative is dealing with the fear factor from your other employees who have been or are working around the exposed employee.

Before long, employees may realize there is no advantage in informing employers of possible exposure because they don’t want to go unpaid for even a few days. With only exposure but no symptoms, employees won’t qualify for unemployment (because they can’t work) or state disability (because they aren’t sick). Ironically, if you have and enforce good safety protocols, your employees may be safer at work than at home where they take safety more casually.

There is no perfect answer in the current environment. You need to look at how your business operates and what system would work best for both you and your employees. You may even develop a plan that combines some or all of these solutions. Once you decide what you want to do, write up a protocol so everyone understands that system and follows it. It can help employees believe you care about them if you explain your reasoning for choosing that system.

Pandemic Safety Protocol

Several clients have asked us what a safety protocol should include. We have provided below a very basic plan designed for offices but this is not one of those situations where one plan can work for everyone. You should take these concepts and expand on them based on your work environment for offices or field job sites.

ABC Company Safety Protocol

In order to create a safe working environment for you and for our customers, we have implemented the following protocols:

Before Leaving for Work

  • You must self-check to confirm you do not have any symptoms.
  • If you do have symptoms, do not go into work but call your supervisor immediately.

Upon Arrival at Work

  • You must have your temperature taken (and show it is below 100 degrees).
  • You must sign off that you do not have any of the symptoms listed on the sign-off sheet.
    (Symptoms include cough, headache, the recent loss of taste or smell, fever or chills, shortness of breath or difficulty breathing, fatigue, muscle or body aches, sore throat, congestion or runny nose, nausea or vomiting, diarrhea.)

While at Work

  • You must wear a face mask/covering over your mouth and nose whenever:
    • You leave your office or work station for ANY reason.
    • You cannot maintain at least a 6-foot separation from others while in your office or work station.
  • Do not enter another employee’s office or work station for any reason.
    • Speak to others by phone or email or stand outside their workspace.
    • Leave any paperwork or other items for an employee in the box outside each workspace for the touchless transfer of items.
    • Eliminate any unnecessary face-to-face communications.
  • Wipe your work station and equipment with antiseptic wipes at least once per day.
  • Wash your hands for at least 20 seconds with antiseptic soap at least 3 times each day.
  • Someone will be assigned the responsibility of wiping down daily the general use areas and door handles.

Customers Entering the Facility

  • All non-employees must agree to a temperature check as entering the facility and must be wearing a face mask/covering at all times. 
  • Non-employees must stay at least 6 feet from any employee.

If Exposed or Contract Virus

  • Inform management immediately of any symptoms or possible exposure.
  • If you may have been exposed but have NO symptoms:
    • You may choose to self-quarantine and use any available regular sick or unpaid time off.
    • You may choose to be tested and must remain off work until you receive a negative test result.
  • If you DO have symptoms:
    • You will be required to provide certification to determine eligibility for up to 2 weeks of emergency Paid Sick Leave through the Federal Families First/CARES.
    • You must remain off work until you have at least 3 days with no symptoms (or a negative test result).

We want and need you to take safety as seriously as we do. Therefore, failure to adhere to our safety protocols may result in disciplinary action, up to and including termination of employment.

Read and Discussed

Include a signature block at the bottom that includes space for the employee’s printed name, signature, and date.

We expect to see COVID-related lawsuits popping up over the next few months. Your best defense is to ensure employees are repeatedly trained/reminded about your specific safety protocols… and writing up employees who ignore them. We can’t provide 100% protection against exposures but we can certainly make the workplace as safe as reasonably possible with just a little effort.

Managing Unemployment Forms

“My business was closed for over 2 months due to the state stay-at-home orders. In the past few weeks, I have been bombarded with various unemployment claims and notices but the deadlines for responding have passed. What do I do with them?”

Your HR Survival Tip

You only had to hear the news of all the layoffs caused by the pandemic to know EDD (California’s Employment Development Department) was swamped with unemployment claims. They are slowly catching up but we’ve seen a lot of forms arriving in June but with March and April dates. So now it’s your turn to be swamped.

The way we like to handle them is to first sort them by employee so you can see if there are multiple documents or a progression in the documents for that employee. The most common are:

  • Notice of Unemployment Insurance Claim Filed — This is the first form you receive. It shows you an employee has filed a claim. The form includes the employee’s name and social security number, the effective date of the claim, the last day of work, and the reason the employee gave them for not working. If the information is correct, you can just file this in the employee’s personnel file. If the information has errors (or you want to fight their eligibility), you provide the correct information on the back of the form and return it to EDD. Normally you have 10 days from the “Mail Date” on the form but, right now, just return it as soon as possible. Once things have settled down, EDD will hold firm to that 10 days and you could lose your chance to fight the claim if your response is late.
  • New Employee Registry Benefit Audit — Receiving this form means they want to confirm the information they have on this employee. Questions 1-3 are easy to understand. Question 4 is asking for the most recent pay period start and end dates (this is the period worked) and the employee’s usual pay. Question 5 includes a chart where you must break down their earnings by week, include the hours paid each day and state what type of hours they were (regular, vacation, etc.). The form lists the weeks they are interested in so you only have to complete those lines. In most cases, the employee may not have worked at all during some or all of the weeks they list.
  • Notice of Unemployment Wages — This document informs you of how much your company’s unemployment reserve account will be charged for this employee. EDD looks at the employee’s earnings for each of the last four full quarters. This information is in the chart on the form. Below that they state the percentage of those earnings that came from your company. If it states your company’s percentage is 50%, your account will be charged for 50% of the employee’s weekly amount, up to 50% of the maximum benefit. You may request a ruling if you don’t agree with EDD’s calculation but you’ll need to submit that request at the bottom of the form and submit it prior to the request deadline at the top of the form.

California loves to provide unemployment and it’s easier to qualify than most people think. An employee is unlikely to receive unemployment if they resign, if they destroy property on their way out the door, or if they are insubordinate in front of others. Unfortunately, being bad at their job doesn’t prevent employees from getting unemployment.

Your unemployment reserve account is filled with money you paid in as part of your payroll taxes. Right now, everyone’s unemployment reserve account is taking a beating and you may see your unemployment tax rate increase a bit. Some of you may run it dry. If you have nothing left in your reserve account, you could receive a notice from EDD that allows you to voluntarily add money to your account. We haven’t yet heard a good reason to do this but it’s up to you. Your employees will still be able to receive unemployment, even if your reserve account is empty.

Commission vs. Bonus

“I want to pay my employees a commission of $20 for every successful upsell of our products to a current client. How do I set that up?”

Your HR Survival Tip

Employees are often excited about an opportunity to earn extra money. Let’s first make sure you are using the correct terms and processes for it so you remain in compliance with California law.

In California, a commission is only available when the “salesperson” is actively involved in making and closing the sale and earning a percentage of the sale. You must have a written commission plan signed by each employee with specific details, in accordance with the law. In your case, commission is the wrong term for what you’ll pay.

Since your employees will earn a flat $20 for each upsell, this is considered a non-discretionary bonus. It’s non-discretionary because it is expected whenever they successfully upsell a client. It’s a bonus because it is a flat dollar amount instead of a percentage of the sale.

The only negative is, in CA, a non-discretionary bonus is subject to overtime for the period it covers. For example, if an employee’s bonuses are earned and paid each pay period, you would need to check if any overtime was worked that pay period and adjust the bonus accordingly. If the bonus was only paid quarterly, then you review any overtime worked in that quarter. This is one of California’s many special calculations. It’s not a difficult calculation; you just need to learn how to do it and to use it consistently.

Giving employees the opportunity to earn a little extra money can be a great motivator, in addition to helping your sales. However, since it is about money, you should create a simple written plan to ensure it is implemented and calculated correctly and everyone understands it. A good idea can fall flat if there are misunderstandings about the money or if it’s too complicated. Contact us if you want help with your plan.

Mid-Year Updates

Once upon a time, all the legal changes in California became effective on January 1st. But that was then. The past several years have shown us changes can go into effect at any time so we have to be more diligent if we want to be compliant.

This July 1st, 2020, is the effective date for the following changes:

  • Paid Family Leave (PFL) — This is currently 100% paid by employee taxes but it is not an actual leave. Employees may receive supplemental pay from the state if you have approved a leave and the employee has an eligible reason. The most common use of PFL is for baby bonding. Since PFL began, the maximum time has been 6 weeks but that has now been expanded to 8 weeks.
  • New Local Minimum Wage — The City of Santa Rosa has set a minimum wage of $14-15 per hour, depending on the size of the company. This will become $15 per hour for all employees in January.
  • Increased Minimum Wages — The following localities have a mid-year increase in their minimum wage:
    • Alameda: $15.00/hour
    • Berkeley: $16.07/hour
    • Emeryville: $16.84/hour
    • Fremont: $15.00/hour if 26+ employees; $13.50/hour if 25 or fewer employees
    • Los Angeles City: $15.00/hour if 26+ employees; $14.25/hour if 25 or fewer employees
    • Los Angeles County (unincorporated areas): $15.00/hour if 26+ employees; $14.25/hour if 25 or fewer employees
    • Malibu: $15.00/hour if 26+ employees; $14.25 if 25 or fewer employees
    • Milpitas: $15.40/hour
    • Novato: $15.00/hour if 100+ employees; $14.00/hour if 26-99 employees; $13.00/hour if 25 or fewer employees
    • Pasadena: $15.00/hour if 26+ employees; $14.25/hour if 25 or fewer employees
    • San Francisco: $16.07/hour
    • San Leandro: $15.00/hour
    • Santa Monica: $15.00/hour if 26+ employees; $14.25/hour if 25 or fewer employees

This is a good time to remind you that your remote employee must be paid based on where their home office is located since that’s where they are now working. Review the home addresses of anyone working remotely and confirm their pay (and often paid sick time) meets the requirements of that locality.

Broker Trust Broken

“I’ve been working with my insurance broker for many years. Lately, when I’ve asked him a question based on something I heard, I find myself worrying about the answers he gives me.”

Your HR Survival Tip

As with any profession, it’s important to stay up-to-date with the changes in your industry and with technology being used in the industry. Too often, when we start working with a new client, we find the insurance broker doesn’t know the answer to our questions…and we believe they should.

While loyalty is a fabulous thing, you may have to decide if your loyalty really belongs to your broker or to your employees. You may not like “breaking up” with your broker but you do need to take responsibility for the choices you make affecting your employees. We all use brokers to provide us with those choices.

We recently heard a client’s broker say he wasn’t really “techie,” so he was unaware that technology started playing a big role in insurance enrollments years ago. Whether you are enrolling directly online with the carrier or using an online broker-provided service like Ease, being able to have employees enroll online (by smartphone or computer) is a huge time saver. You don’t have to chase the paper or try to read someone’s writing. The employee’s payroll deduction immediately appears so they know what that choice will cost them.

Some industries won’t find this as useful because their employees are not computer literate and don’t have easy access to these online options. Even if this is the case, make sure you are involving your broker by ensuring he is available to help employees with the forms and their questions.

Does your broker check on pricing every year? How do you know you’re being offered the best pricing or coverage if he doesn’t? Your broker should be informing you about the latest changes to the insurance industry so you are aware of other options you may have. While the Affordable Care Act (ACA) is still in force, it has gone through some changes and isn’t as rigid as it once was. Maybe you can now only afford to pay $100 toward an employee’s premium rather than 50%. Maybe you want an executive carveout with better choices. Has your broker provided options to help or inform you?

Your broker makes a nice commission on your insurance policy premiums and it’s your job to make sure he earns it by helping you and your employees. Feeling confident your broker is current with the options available for you, is able to answer all your questions, and makes enrollments easy for you…that’s how they really earn your loyalty. And, yes, we know some good brokers and would love to make an introduction.

Unlimited PTO

“I’m tired of paying out vacation when someone terminates. How can I offer vacation without accruing it?”

Your HR Survival Tip

You can front-load vacation so it doesn’t need to be accrued but that doesn’t eliminate the need for a payout upon termination. The only other option is an unlimited paid time off (PTO) plan but it has problems of its own to consider.

A California appeals court recently ruled a company’s unlimited PTO plan wasn’t done correctly and the result was the plan was accruing for purposes of that particular case. The court was very specific that the results were based on this particular case and may not apply to other plans.

CA doesn’t require companies to provide vacation time. However, if you offer paid time off, any accrued time is considered earned wages and cannot be taken away from the employee. Accrued time must either be used as paid time off by the employee or be paid out. This is why it’s critical you have a cap on accruals (which must be at least 150% of their annualized accrual) so you limit their accrual balance.

If you’ve been thinking about implementing an unlimited PTO plan, add this to your thinking:

  • The wording is critical to avoid it becoming an accrual plan when read by attorneys and judges. There are a few keywords and phrases that can work against you. You also want to be clear the PTO is not a form of wages.
  • You cannot restrict why they use the time off so medical leaves of absences qualify as paid time off. This means you need to consider what you can do to minimize long paid absences.
  • You must have a written policy that is signed by every employee. This is where the case mentioned above went wrong…they didn’t properly inform this employee they were under an unlimited PTO plan so it reverted to their normal accrual plan.
  • Will you allow sufficient opportunity for employees to actually take time off or reduce their hours in lieu of taking time off?
  • A common theme to these plans is the condition that it is the employee’s responsibility to ensure their work is being completed while absent. This means you need good job descriptions to use as a measurement for their work and performance.
  • Are there penalties for not properly scheduling the time off?
  • How are you ensuring the plan is fair? Will some employees take the time off while leaving the work for others who now won’t have the opportunity for time off?

Even if you figure out the answers to all these things, your plan will not be risk-free. Unlimited PTO is fairly new and new things are tested in court. No California state court nor the DLSE (CA’s Division of Labor Standards Enforcement) has definitively ruled on just what your unlimited PTO plan must include (or exclude) to avoid legal risk. Therefore, we are waiting for more court cases to provide more guidance.