Tag: HR consulting firms

Reimbursing Employees for the Cost of Cell Phone Use

by hrconsulting14

An issue that is arising more and more lately for HR consultants, is the use of smart phones. It is common for employers through their HR Departments to either require or suggest that their employees have smart phones in use during the workday. There are a number of reasons for doing so, including scheduling, recording hours worked, ordering materials, coordinating with other employees and dealing with vendors. Additionally, apps are being provided to the cell phones to facilitate the work.

The question then arises as to what extent a company is required to reimburse the usage cost for such cell phones.

Fortunately, there is a case directly on point in California.  In Cochran v. Schwan’s Home Service (2014) 228 Cal.App.4th 1137, employees brought a class action against the employer after there had been a denial of reimbursement for the expenses to the use of their smart phones.

The first issue was whether the employer is required to pay employees for the initial cost of purchasing the cell phone itself. The case described no such requirement. In fact, it was not even mentioned as an issue in the case.

The next and final issue was to what extent is the reimbursement for the cell phones use. The case made it clear the company is only required to pay the monthly service or data plan, based upon the percentage of use for business by the employees. So for example, if the monthly plan is for $50 and the employees use the cell phone 50% of the time, the reimbursement would have to be $25 per month.

This is also in compliance with various labor code sections which require employees to be reimbursed for business expenses. For example, in California, this is codified in Labor Code Section 2802.

So be mindful of the fact there must be reimbursement. An alternative is to give a reasonable stipend each month for employees. Not the precise and actual cost of the cell phone usage, but a reasonable approximation that would apply to all employees. If you have any questions in this regard, please contact us as we provide HR consulting to employers.

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 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.