Month: November 2018

HR Consulting Update–California’s Ban-the-Box Legislation

by hrconsulting14

If you are an HR department in California, pay particular attention to the new legislation effective January 1, 2018..  California has what is called “Ban-the-box” legislation under AB 1008. This states that an employer may not ask about criminal history in the initial application for employment (i.e. having a box that will be checked on the application for criminal convictions). The whole idea is it prevents people from having the chance to explain their circumstances. If they are barred in the application in the very beginning, they wouldn’t have this opportunity.

The next step is to make a conditional offer of employment. At that stage you can discuss the criminal history in the background check with the employee. The only thing you cannot inquire about is: 1) arrests that do not result in conviction, 2) referral to a drug or alcohol diversion program or 3) convictions that have been sealed, dismissed or expunged. But your HR department has every right to discuss the parameters of the convictions or warrants.

In fact, it is within the spirit of the law to discuss matters with the employee because as stated above, that would give the individual a chance to explain.

Remember also that one does not receive a warrant unless there is some kind of conviction or finding of guilt. Warrants are not issued just for an arrest.

California Exempt Employees Salary Deductions for Time Off– HR Consulting News

by hrconsulting14

HR departments have been asking when a salaried employee takes time off for sickness and no longer has available sick leave our PTO, can there be a deduction from salary for those days off? This appears to be the case in California.

Here are the rules:

–Deductions allowed when absent from work for one or more full days for personal reasons other than sickness or disability (29 CFR § 541.602(b)(1); DLSE Manual § 51.6,14,3.)

— Deductions allowed for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made from a bona fide plan, practice, or policy of providing compensation for such sickness or disability (29 CFR § 541.602(b)(2); DLSE Manual § 51.6.15.2.). This applies to California employees because of the required sick leave policy.

–This means an exempt employee’s salary cannot be subject to reduction for partial day absences. All that is allowed is to deduct these absences from PTO. See Abshire v. County of Kern, 908 F.2d 483, cert denied, 498 U.S, 1068 (1991) [deducting an employee’s salary for absences less than one day violates FLSA salary basis test]; Conley v. P.G.& E. (2005) 131 Cal.App. 4th 260, 267; DOL Opinion Letter FLSA2007-6 (February 8, 2007) [partial day absences not expressly recognized by Part 541 regulations may render an employee’s compensation not on a salary basis, thereby jeopardizing exempt status].) Hence, if the employee is absent for 1 ½ days, there can only be a deduction for one full day.

Below are the various alternatives as to what salary deductions can be made from an exempt employee for absences. This assumes that the employer is complying with California law and has a sick leave and PTO policy (collectively referred to as “PTO”):

PERSONAL REASONS–FULL DAY ABSENCES:

            — Has accrued PTO: No salary deduction, but Company can deduct full day from PTO

            — No accrued PTO: Full day salary deduction can be made.

 

PERSONAL REASONS–PARTIAL DAY ABSENCES:

            — Has accrued PTO: No salary deduction, but Company can deduct partial day hours from PTO

Conley v. Pacific Gas & Electric Co., 131 Cal.App.4th 260 (2005); Rhea v. General Atomics, 227 Cal.App.4th 1560 (2014).

            — No accrued PTO: No salary deduction can be made.

 SICKNESS OR ILLNESS–FULL DAY ABSENCES:

            — Has accrued PTO: No salary deduction, but Company can deduct full day from PTO

            — No accrued PTO: Full day salary deduction can be made.

 

SICKNESS OR ILLNESS–PARTIAL DAY ABSENCES:

            — Has accrued PTO: No salary deduction, but Company can deduct partial day hours from PTO

            — No accrued PTO: No salary deduction can be made.

 Notes:

If the exempt employee performs any work duties, including answering phones, listening to voicemail, emails, reviewing records, etc., then it is considered a partial work day. Technically, the employee could spend a few minutes doing this.

If the exempt employee takes a full day off (sickness or personal reasons), but refuses to use accrued PTO (wanting to save it for another day), that’s fine, but they will not be paid for that day. They can also use part of their unpaid FMLA if the time off is for sickness.

There is no need to pay a full week salary for the first and last weeks of employment if the employee only works for a partial day.

If the employee has committed a safety infraction and sent home, the company is not required to pay for a full day’s wages.

The week’s salary is not owed if no work is performed at all during the workweek.

An exempt employee cannot be docked for late arrivals or leaving early. However, as discussed on the phone, an exempt employee cannot take advantage of these rules. For example, he or she cannot on a daily basis come to work an hour or two late. Continuing to do so would be grounds for termination.

No deductions can be made for jury duty, witness appearances or military leave, unless the entire week is taken off.

Assuming the exempt employee is receiving workers compensation, the company is allowed to make full day deductions due to such absences.

Some companies claim there can be partial day deductions from the PTO bank only if the employee’s absence is 4 or more hours. For example, the employee works 5 hours and then goes home sick. If it is less than 4 hours, it is considered so minor there should be no deductions. For example, an employee showing up to work and then has to leave an hour later sick. But the California case of Rhea v. General Atomics, 227 Cal.App.4th 1560 (2014) abandons this arbitrary 4-hour benchmark. Now, technically, any partial day absences can be deducted from PTO.

Conclusion:

HR professionals have to be very careful in this area. The State of California has given employees 3 days per year for paid sick leave. Employers have also added to this with additional PTO. This is all employees are entitled to receive. If they go beyond this, it’s on their own time and will not be paid. The State of California has never required companies to pay for long-term illnesses. Instead, healthcare costs are covered by the major medical plan and if the time-off becomes substantial, that employee can apply for state disability.

However, a company has the discretion to continue paying employees for time off due to sickness if she wishes. But it would have to be neutrally applied to all employees.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

Forced Use of FMLA–Sick Leave/PTO

by hrconsulting14

The question presented is whether a Company can force and unilaterally decide to allocate time off for FMLA and or sick leave/PTO. The assumption is made, because of the liberality applied to employees, and we are dealing with a “serious health condition”.

FMLA:

It might be argued by the employee that they can decide to take unpaid medical leave and not exhaust FMLA. In other words, save their FMLA rights for the future. But the case law is to the contrary. An employer can force the use of FMLA.

On this precise issue, some courts have held forced FMLA leave is permissible. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir.2006) (“[F]orced leave, by itself, does not violate any right provided by the FMLA.”); Foster v. New Jersey Dep’t of Transp., 255 Fed.Appx. 670, 671 n. 1 (3d Cir.2007) (same).

Wysong v. Dow Chemical Co., 503 F.3d 441 (6th Cir.2007), stated an employee who alleges she was forced unnecessarily to take leave may state “a type of interference claim.” (at p. 449). But a close examination indicates the cause of action ripens only if the employee is wrongfully turned down for FMLA in the future–in other words, when the person later wants to use it.

So there is authority for forced use of FMLA. And because it is 12 weeks per year, it is unlikely it would be exhausted and there would be plenty of time left for its exercise in the future.

PTO/Sick Leave:

It is well established that an exempt employee cannot be subject to partial day deduction of his salary for time-off. If that does occurs repeatedly, the person will then be considered nonexempt. But if full days are taken off, this rule does not apply.

It would also appear logical that if the employee has continued to receive his salary for the periods of time off, the Company could deduct from his PTO and sick leave. After all, the Company is paying him for the time off. It would give the employee an unfair advantage: for every day off, he would not only get paid, but still accrue PTO.

But there is a slight catch. Under a California Labor Commissioner Guidance Memo, you have to give the employee at least 90 days advance notice that you are making these deductions from the PTO or sick leave. That notice could be in the employee handbook. If it isn’t, you have to give him a separate notice and then wait for 90 days.

Correspondingly, if the employee has not been paid for the time off, the deduction should not be made. The employee for whatever reason has decided not to receive pay for this time off and that would appear to be his right. By not getting paid, the employee would have the right to continue accumulating the sick leave and PTO.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

California Paid Family Leave Act–HR Consulting

by hrconsulting14

As an HR specialist, is important to have knowledge of the different California laws as to family leave. Here is a brief summary to be used by HR consultants.

California Paid Family Leave Act. This is under Section 3303 of the California Unemployment Insurance Code. This allows paid leave, up to 70% of one’s salary, for 6 weeks. Employees pay automatically into the state disability insurance fund with payroll deductions. It is then administered by EDD. Applies to the need to take time-off to care for a seriously ill family member (spouse, marital partner, parent, grandparent, grandchild, aunt, uncle, sibling or child) as well as baby bonding for the first year after birth. It does not apply to leave for the employee herself (except for later baby bonding) –only to the disabilities of other family members.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

HR Consulting Warning Notice: No More Fighting

by hrconsulting14

It is inevitable that some of your employees will be involved in fighting or other altercations. It is not the role the company or the HR department to determine who was at fault–instead, any good HR consulting firm will let both participants know that regardless of the causation, such unprofessional conduct will not be tolerated in the future.

Here is sample HR language you might want to give in a write-up:

There is a strict Company policy against any unprofessional, rude, violent, confrontational or assaultive behavior (“unprofessional conduct”) by and between employees. This includes the recent fight of which you are involved on _______________ with ____________. Company does not take express its views as to who may have caused such behavior.  Regardless of the instigation, it is forbidden.

You are advised in the future to take whatever steps are necessary to prevent such unprofessional conduct interactions. It is inevitable you will have contacts with the above individual, so please take appropriate corrective measures.

It has also come to our attention that regularly taking your prescribed medication would be helpful in preventing this from occurring. Please take those appropriate medical steps.

For this reason, any further instance of such unprofessional conduct will result in discipline, up to and including termination.

HR Consulting–Forced Retirement

by hrconsulting14

One of the questions that arises as to older employees, is whether and under what circumstances they can be forced to retire at a particular age. Here are some of the rules.

Federal:

The federal age discrimination in employment act (ADEA) of 1967 protects employees age 40 or older and prohibits discrimination based upon their age.

Federal law prohibits forced or mandatory retirement age. The two major exceptions are as follows:

  • executive or high policy positions of persons over 65 years who of work for the company for at least two years before retirement, can be retired if their immediate retirement benefit from the company is at least $44,000 a year
  • if the company can show the retirement is occasioned by a bona fide occupational qualification. This means that the job duties can only be performed by a younger person.
  • Under a voluntary early retirement incentive plan (section 623(f)(2)(B)).

These provisions only apply to companies with with 20 or more employees (19 U.S.C. Section  630(b)).

California:

The rules in the state as the mandatory retirement are under the fair employment and housing act (FEHA). This also prohibits mandatory retirement age, and less. There are essentially the same exceptions as above. This applies to employers with a minimum of 5 employees that are regularly employed for each working day for a 20 week period sometime in the last two calendar years (Gov. Code Section 12916 (d)). These employees need not be located. The same worksite for the employer. Not surprisingly, the California rules are more protective of employees and are usually the ones used by plaintiffs lawyers.

One of the exceptions is certain executives or high policymaking employees. But they must be entitled to a annual retirement benefit of at least $27,000 (Gov. Code 12942 (c)(3)).

Settlement and release agreements:

It is permissible to enter into an incentive-based settlement agreement in which the employee agrees to the mandatory retirement in exchange for consideration (29 USC Section 626(f)). It must be knowingly and voluntarily entered into and among other factors, gives the employee the right to consult with an attorney, have 21 days to review the agreement, and seven days thereafter to revoke it.