Tag: HR consultants

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.

H-2B Visas–Guide for Employers

by hrconsulting14

It is not uncommon for a company to have a temporary need for seasonal workers. Including foreign nationals. The good news is that most employers would qualify for this service. However, they can be frustrating to acquire. There is now a huge demand for them. If the demand becomes high, they switch over to a lottery–so there is lack of predictability. Currently, the visas are limited to 66,000 per year (increased by an additional $15,000 by the White House on March 23, 2018). And, the feds have advised applicants that they have to submit at least 45-60 days before the certification is needed. In reading one of the US Department of Labor brochures, they actually recommend starting the process 150 days before the start date! This is not an absolute requirement, but a recommendation. Frankly, I would still submit the application now anyway.

They are allowed for both skilled and unskilled workers.

This visa is available for seasonal workers, especially for what is called “Peak load need” (for example, during the Christmas season).

T he following are the minimum requirements:

  • The employee must return to their foreign home when the job is finished (unless extended, the duration is one year).
  • A firm job offer is extended by the US employer.
  • The employee must be minimally qualified for the job (this would not appear to be a strenuous requirement, as even unskilled employees can be trained).
  • The employer files the application paperwork with the US citizenship and immigration services (USCIS).

As is typical with the federal government, there are a number of forms and procedures to follow. If you haven’t done it before, it can be rather time-consuming and complicated. It is highly recommend you use a professional service, such as: 1) www.laborci.com (208-777-2654), 2) www.actionvisa.com (972-442-4244); 3 www.maslabor.com (434-263-4300) or 4) www.azteclabor.com (805-460-6808).

Stay away from the immigration law firms because they are expensive.

If you want to do it yourself, you can go online and get a packet for $69.95 at  www.us-immigration.com.

(HR consulting; HR consultants)

National Lien Law can act as your virtual HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

Implementing a No-Dating Policy

by hrconsulting14

As HR consultants, from time to time we have wondered whether there should be a crackdown on dating or fraternization between employees. Over the years, it is become more more problematical with the HR department, with one war story after the other of the problems that ensue.  Freedom and openness has given rise to intolerance because of the abuses and effects overall in the workplace.

Hence, for those HR professionals who wish to implement a “no dating policy”, the following provision can be inserted in your Employee Handbook:

“Company wishes to take all steps necessary to ensure a productive, amicable and stress-free work environment. One of the issues that has arisen in this regard is the propriety of dating between co-employees. Although Company acknowledges that dating and romantic relationships can be the private affair of the employees and can occur after hours or on weekends, these relationships unavoidably have an effect and “spillover” into work hours. As a result, problems have been observed over the years in a number of instances. Some examples are as follows:

  • Other employees feeling uncomfortable observing such relationships;
  • The involved employees spending personal time together during working hours;
  • The detrimental effects when a relationship ends, which at times can be anything but amicable;
  • Leading to inappropriate workplace conduct in the form of physical signs of affection;
  • Interference with productivity;
  • The inherent problems with a relationship between supervisors and subordinates;
  • The perception from other employees that one of the members of the relationship is given preference by another, especially in a managerial position;
  • Personal emails and texts between the involved employees during working hours;
  • The possibility of accelerating into sexual harassment or the exchange of inappropriate photos/texts.

For this reason, it is the policy of this Company to forbid sexual, dating or romantic relationships between co-employees.”

HRconsulting.network can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give our parent company us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.