Silvers HR https://www.silvershr.com California HR Services & Consulting Tue, 05 Nov 2019 18:59:16 +0000 en-US hourly 1 https://www.silvershr.com/wp-content/uploads/2017/10/cropped-SHR_logo-32x32.png Silvers HR https://www.silvershr.com 32 32 Suspending for Discipline https://www.silvershr.com/frequently-asked-questions/suspending-for-discipline/ Tue, 05 Nov 2019 18:59:16 +0000 https://www.silvershr.com/?p=28159 Question: We want to suspend an employee to get his attention.  What do you think? John has been late a number of times over the last six months. His supervisor has given him a verbal warning, and a written warning. He’s been warned that one more tardy this month and he’ll be suspended – that […]

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Question: We want to suspend an employee to get his attention.  What do you think?

John has been late a number of times over the last six months. His supervisor has given him a verbal warning, and a written warning. He’s been warned that one more tardy this month and he’ll be suspended – that should get his attention!  (Please note: If the late arrivals are for reasons which may be protected by the federal Family Medical Leave Act, California Family Rights Act, federal Americans with Disabilities Act, workers’ compensation, pregnancy or any number of protected leave, call your HR Consultant before you proceed.)

Today, John is 20 minutes late. His three day suspension is automatic.

Answer: What’s the point? This suspension is harder on the employer than the employee in many cases.

John gets three days off without pay, while his employer loses him for even more time than he’s already missed.

There are no requirements or laws for private sector employers (outside of a collective bargaining agreement) to give progressive discipline or increasingly severe penalties (usually noted as a verbal warning, then written warning, followed by suspension) before an employee is demoted or terminated.

Of course, giving the employee some “feedback” that he’s veering off course, including the expectations and consequences is usually recommended. Rather than a multiple day suspension many employers give the employee a final written warning and a day of “decision making” leave. In any case, losing the employee’s productivity is not beneficial to the employer (hasn’t he already missed enough work?) and will not further support the employer’s decision to terminate the employee.

We typically recommend suspending an employee as part of discipline for a very short period of time (one day and generally not exceeding three days), and always providing a specific end date to the suspension.  When suspending exempt employees you must continue paying the exempt employee his/her salary if the suspension is for less than a full workweek.

Suspension pending an investigation or drug/medical test results may run longer, but the employee should be kept in the loop as to the expected return to work date.

A word of caution when terminating after suspension, the Labor Commissioner views the last day of work as the day the employee should receive his/her final paycheck.  If an employer suspends an employee then terminates him/her, the employer should consider the time spent on suspension as waiting time and pay the employee through the date of termination.

Suspending an employee shouldn’t be taken lightly and we recommend calling your HR Consultant before you proceed. 

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Termination Package https://www.silvershr.com/frequently-asked-questions/termination-package/ Tue, 05 Nov 2019 18:56:47 +0000 https://www.silvershr.com/?p=28157 Question: What Must I Give Employees Who Are Leaving Our Company? Answer:  In addition to final payment of wages, employees who are separating employment in California must receive specific documents on their way out the door.  Make sure your documents are up to date. At minimum, an employee leaving voluntarily or involuntarily must receive:  A Notice of Change in […]

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Question: What Must I Give Employees Who Are Leaving Our Company?

Answer:  In addition to final payment of wages, employees who are separating employment in California must receive specific documents on their way out the door.  Make sure your documents are up to date.

At minimum, an employee leaving voluntarily or involuntarily must receive: 

  • A Notice of Change in Employment Relationship form. This is usually for the employee to take to the Employment Development Department (EDD) to begin the unemployment insurance process.  Click here for  a sample Change in Relationship Notice
  • A “For Your Benefits” brochure (DE 2320) published by the CA EDD outlining an employee’s rights to several state benefit programs. You may order these from our office or download the lengthy EDD DE Form 2320pdf here. 
  • The California Health Insurance Premium Payment (HIPP) Program also requires that employers give separating employees notice of their rights under the HIPP law for assistance in paying medical premiums.  You may download a sample HIPP Notice

All of the above forms and more are available to our clients on our website in the HR Library. Client may contact us for access.  

An employee or his/her dependents losing group health coverage may be eligible for COBRA continuation of coverage and must receive a COBRA Continuation Coverage Election Notice outlining all the rights under this extensive law.  This Notice does not have to be delivered to the employee on the final workday.  However, timing and proof of delivery are very important under this law.  The employer must notify the plan administrator within 30 days of the employee’s loss of coverage. The plan administrator must send to the employee (and covered dependents) the Notice within 14 days. COBRA Notices will vary.  We suggest you contact your insurance broker.
 
Employers with 19 or fewer employees will be covered by Cal-COBRA and will have these notification services completed by the insurance carrier.  Larger employers will have to administer this notification process internally or hire a third party to do so.  Penalties for delaying this Notice are significant, ranging from $100/day for each day of non-compliance to $500,000 or 10% of the health plan costs (whichever is less) for major violations.

Employees who also have profit sharing, retirement funds, 401k, etc. should also receive notice of the options of the disbursement of these funds, although this does not have to be done by the last day of work.  Each plan should have a notice period set out in the plan documents.
 
By the way, an employee whose employment is separated may request a W-2 prior to the normal January cycle. If requested, the W-2 must be sent for all wages paid during the current calendar year.  The form must be sent within 30 days of the request or, if later, within 30 days of your last payment of wages to the employee.

 

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Pregnancy Disability Leave https://www.silvershr.com/frequently-asked-questions/pregnancy-disability-leave-2/ Tue, 05 Nov 2019 00:08:04 +0000 https://www.silvershr.com/?p=28101 Question: Our employee has been out on PDL eight (8) weeks and plans on taking an additional six weeks off after her pregnancy disability ends to bond with her baby.  We have 15 employees and she does not qualify for FMLA or CFRA. Do I need to do anything? Answer: If the employee is not […]

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Question: Our employee has been out on PDL eight (8) weeks and plans on taking an additional six weeks off after her pregnancy disability ends to bond with her baby.  We have 15 employees and she does not qualify for FMLA or CFRA. Do I need to do anything?

Answer: If the employee is not eligible for FMLA/CFRA or the New Parental Baby Bonding Leave, the extended time off would not be protected under federal or state law. The employer should first request a release or a return-to-work doctor’s certificate, if this is consistent with your practices for other non-pregnancy related leaves of absence. 

The employer is not required to grant the additional time off. However, if the time off is granted, the employer should provide an EDD Paid Family Leave Insurance pamphlet which describes the wage replacement benefits available during time off to baby with the new baby.

Keep in mind if the employer in the scenario above had 20 or more employees, the employee may be eligible for job protected time off to bond with her baby under New Parental Baby Bonding Leave.

Call your HR Consultant if you have questions.

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Outside Salespersons https://www.silvershr.com/frequently-asked-questions/outside-salespersons/ Tue, 05 Nov 2019 00:06:19 +0000 https://www.silvershr.com/?p=28098 Question: What is the minimum pay required for outside salespersons in California? Answer: If an Outside Salesperson is properly classified as “exempt,” by meeting the job duties test for an Outside Salesperson, there is no minimum salary requirement.  An Outside Salesperson can be paid a fixed salary, salary plus commission, commission only or even hourly […]

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Question: What is the minimum pay required for outside salespersons in California?

Answer: If an Outside Salesperson is properly classified as “exempt,” by meeting the job duties test for an Outside Salesperson, there is no minimum salary requirement.  An Outside Salesperson can be paid a fixed salary, salary plus commission, commission only or even hourly and there is no minimum salary requirement.  Outside Salespeople are exempt from overtime, minimum wage, and meal periods and rest breaks.  However, in order to meet the exemption the individual must be at least 18 years of age and regularly spend more than 50% of his/her time away from the office and engaged in the selling of products, services or facilities.  Keep in mind, time spent at the employee’s home office would not be considered as time away from the office when determining where the employee spends his/her time. Additionally, the time an Outside Salesperson spends making deliveries, assisting with repairs or maintenance also does not count towards meeting the requirement of spending more than 50% of time away from the office as these are not considered exempt job duties. 

If you are considering hiring an Outside Salesperson, call your HR Consultant to assist you with determining if the exemption criteria can be met.

 

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Meeting Time https://www.silvershr.com/frequently-asked-questions/meeting-time-2/ Tue, 05 Nov 2019 00:04:39 +0000 https://www.silvershr.com/?p=28094 Question: If we have an employee working from 7:00 a.m. to 4:00 p.m. (employee takes a one hour unpaid meal period) and then have a mandatory meeting the same day from 5:30 p.m. to 6:30 p.m., do I just pay him for the hour for the meeting (at the overtime rate) or do I have […]

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Question: If we have an employee working from 7:00 a.m. to 4:00 p.m. (employee takes a one hour unpaid meal period) and then have a mandatory meeting the same day from 5:30 p.m. to 6:30 p.m., do I just pay him for the hour for the meeting (at the overtime rate) or do I have to pay him for 2 hours because he went home and then had to come back?

Answer: If the meeting takes place on an employee’s regularly scheduled workday, but the employee must return sometime after the end of his or her shift to attend the meeting, an additional two hours of “reporting time pay” must be paid. Since the employee has already worked eight hours in the day, the one hour meeting will be paid at the overtime rate and the one hour remaining of reporting time pay will be paid at the regular rate to meet the two hours of reporting time pay for the second report.

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Leaving Early https://www.silvershr.com/frequently-asked-questions/leaving-early-2/ Tue, 05 Nov 2019 00:02:15 +0000 https://www.silvershr.com/?p=28091 Question:  We have couple of employees who work eight hours per day.  Currently they take a one hour meal period after working four hours.  Is it permitted if they take a 30 minute meal period and then end their day 30 minutes earlier?  The employees would prefer to do this. Answer:  Yes, this would be […]

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Question:  We have couple of employees who work eight hours per day.  Currently they take a one hour meal period after working four hours.  Is it permitted if they take a 30 minute meal period and then end their day 30 minutes earlier?  The employees would prefer to do this.

Answer:  Yes, this would be permitted as long as the meal periods begin before the end of the fifth hour of work (4 hours and 59 minutes) and are duty-free.  The meal period in/out times must be recorded on the employee’s time record.

It is important to note that the paid 10-minute rest breaks may not used to allow employees to arrive late or leave early and they may not be combined with meal periods.   

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Layoffs – UGH! https://www.silvershr.com/frequently-asked-questions/layoffs-ugh-2/ Tue, 05 Nov 2019 00:00:35 +0000 https://www.silvershr.com/?p=28088 Question:  We have to cut expenses significantly – and it’s come down to reducing headcount. What should we consider? Answer: From time to time employers are challenged with cutting payroll expenses.  So what should you consider when you have to make that tough decision to eliminate positions? There are very few laws in the private sector […]

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Question:  We have to cut expenses significantly – and it’s come down to reducing headcount. What should we consider?

Answer: From time to time employers are challenged with cutting payroll expenses.  So what should you consider when you have to make that tough decision to eliminate positions? There are very few laws in the private sector around how to determine and conduct a permanent layoff or reduction in force (RIF). There are no legal requirements around laying off employees based on seniority or bumping rights back to the last held job. However, it is important that you have defensible criteria for determining which positions and employees are affected by a layoff. Here are a few considerations:

  1. Focus on the business functions/position(s) to be cut back first, then on the incumbents.Does the work group you’re considering have a common purpose, the same job title or skills? Can you clearly outline the position to be eliminated is the least necessary based on business needs?  Avoid “laying off” an employee as a pretext for addressing a poor performer.         
  2. Do you have any written layoff criteria your company has committed to in your policy manual or employee handbook? Outside of a collective bargaining agreement, most employers will not have written layoff criteria such as seniority in job, seniority with the company, or performance.  We recommend that you not outline/commit to these in a policy manual unless your company is prone to regular layoffs.         
  3. Do you have documented performance history on all employees in the work group/job title or department? Ideally, the employer would lay off the poorest performer. Proving that may be a challenge if there are not written appraisals in the file. This performance record may also include awards, disciplinary actions, customer complaints or compliments. In the absence of historical performance data, the employer may prepare a performance appraisal on each employee in the work group, evaluating everyone on the same criteria.
  4. Once you’ve determined who is to be RIFed based on business needs and clearly objective criteria (performance history, training, seniority) then look at the profile of the employees who will be affected. Are they representative of your work force? In other words, if 75% of your work force is under age 40, then a similar percentage of your RIFed employees should be under age 40. There may be exceptions for this based on unique skill sets, but watch out for great imbalances in the make-up of your RIFed staff. Sending everyone over age 50 out the door and leaving only the GenXers/Millennials to run the shop may raise an initial discrimination complaint.     
  5. When business picks up the employer is not legally required to recall/rehire the last employee laid off. However, filling the job within a short period of time with a new (younger, non-pregnant, or non-minority) employee may raise an eyebrow that the RIF was not for legitimate business reasons, but was to eliminate an employee for non-work related (read “discriminatory”) reasons. There are no rules around the rehire period, but we recommend it be at least six months, and 12 months is better.   
  6. Employers who layoff 50 or more employees may have legal reporting and notice requirements under the California and federal WARN Acts. We hope you don’t get there. If you do, you will want to call your legal counsel to discuss notice requirements.

Other Payroll Reduction Options

Some employers prefer to share the pain and reduce salaries across the board rather than layoff one employee. This salary reduction approach may be for top management, for all salaried employees, or throughout the company. Some employers cut back the work schedule in exchange for the salary reduction; others still need full productivity with 10% less payroll. 

Corporate culture will drive some of this decision. Our experience has been that it’s easier on the organization to layoff one or two employees and let them get on with their lives rather than have 20 cranky employees working for less.   

The California Employment Development Department offers a program called Work Sharing Unemployment Insurance that allows employers to reduce schedules in lieu of layoff and supplement the affected employees’ salary with unemployment funds.   Click here to visit the EDD’s Work Sharing Program website.

 

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Harassment Prevention Training https://www.silvershr.com/frequently-asked-questions/harassment-prevention-training/ Mon, 04 Nov 2019 23:57:30 +0000 https://www.silvershr.com/?p=28085 Question: Are we required to train all California supervisors/managers and non-supervisory employees in harassment prevention (AB1825)? Answer: Yes.  If you have 5 or more employees or contractors, you are required to train all managers/supervisors and non-supervisory employees in California, including temporary and seasonal employees within six months of assumption of a position.  If you have […]

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Question: Are we required to train all California supervisors/managers and non-supervisory employees in harassment prevention (AB1825)?

Answer: Yes.  If you have 5 or more employees or contractors, you are required to train all managers/supervisors and non-supervisory employees in California, including temporary and seasonal employees within six months of assumption of a position.  If you have a manager/supervisor that lives in another state but supervises California employees, the manager/supervisor should also be trained in California Harassment Prevention. 

Non-supervisory employees must receive at least one hour of harassment prevention training and supervisors/managers must receive at least two hours of harassment prevention training in 2019 and every 2 years thereafter.

The new law calls out specific topics that must be covered in the training.  Only trainers and educators who are “qualified” under the CA Code of Regulations may conduct the training.

Silvers HR has several training options for you to meet this requirement.  We recommend reaching out to your HR Consultant to review these options.

 

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Extended Medical Leave https://www.silvershr.com/frequently-asked-questions/extended-medical-leave-2/ Wed, 30 Oct 2019 22:01:29 +0000 https://www.silvershr.com/?p=28083 Question: When an employee is out on an extended medical leave due to a work-related injury, does the employee continue to accrue vacation? Answer: There is no legal requirement to provide vacation benefits to employees.  If you do offer vacation benefits to employees, you are not required to continue vacation accrual during a  leave of […]

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Question: When an employee is out on an extended medical leave due to a work-related injury, does the employee continue to accrue vacation?

Answer: There is no legal requirement to provide vacation benefits to employees.  If you do offer vacation benefits to employees, you are not required to continue vacation accrual during a  leave of absence.  (However, if you continue vacation accrual during non-workers’ compensation related medical leaves, you must follow the same practice for employees on a medical leave due to a work-related injury.)

If you have a medical leave policy, it should specify how long vacation will continue to accrue during the leave.  If your policy does not have provisions regarding vacation accrual, you should rely on your past practice.  It is typical to continue vacation accrual during the paid portion of leaves only.

 

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Medical Coverage for Leaves https://www.silvershr.com/frequently-asked-questions/medical-coverage-for-leaves-2/ Wed, 30 Oct 2019 21:59:11 +0000 https://www.silvershr.com/?p=28080 Question:  How long are employers required to continue paying medical premiums for employees who are on an unpaid medical leave of absence?  Answer:   Not as long as many employers may think.   Outside of legally regulated leaves of absence and collective bargaining agreements, there are few restrictions.  Whether by omission or commission, you may be paying thousands […]

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Question:  How long are employers required to continue paying medical premiums for employees who are on an unpaid medical leave of absence? 

Answer:   Not as long as many employers may think.   Outside of legally regulated leaves of absence and collective bargaining agreements, there are few restrictions.  Whether by omission or commission, you may be paying thousands of unnecessary dollars for medical premiums. We often see employers continuing payment of medical premiums for employees who are off work due to a workers’ compensation injury or a personal leave of absence for several months, but not at all for an employee out for a non-work related injury or illness  This can be costly and risky.

Employers covered by the federal Family and Medical Leave Act (FMLA) or the state equivalent CA Family Rights Act (CFRA) (typically those with 50 or more employees), New Parent Baby Bonding Leave (generally employers with 20-49 employees) and Pregnancy-Related Disability Leave have requirements to continue contributing the employer’s portion of medical premium while an employee is on one of these types of leaves of absence.  If your organization is covered by the FMLA/CFRA or the New Parent Baby Bonding Leave then you must continue to pay the employer’s portion of the employee’s medical premium for up to 12 weeks or up to 17 and 1/3 weeks for an employee disabled due to pregnancy.  (Remember that a workers’ compensation injury, pregnancy disability, or caring for an ill family member may also fall under the FMLA/CFRA requirements.)

Once the legally regulated leave of absence has expired and if the employee has not returned to work, then the employer may offer the employee the option of continuing medical coverage under COBRA.  COBRA premiums are paid fully by the employee. Some employers choose to pay the premiums for a longer period because of past practice, generosity, or even guilt. However, there are no legal requirements that the employer’s portion of the group medical premiums be paid by the employer after the FMLA/CFRA, the New Parent Baby Bonding Leave or Pregnancy-Related Disability Leave has expired.  If you are considering continuing to pay the employer’s portion of the medical premiums longer than what is legally required, we urge you to speak with your health insurance provider or broker to determine if this is even allowed.  If after speaking with your health insurance provider or broker, you decide to continue paying the employer’s portion of the medical premiums, it is important to be consistent in paying premiums for employees on a non-legally protected medical leave of absence. 

Many of our clients are beginning to move to a policy of only offering employer contribution towards medical premiums for the remainder of the month in which the unpaid leave began if the leave is not for reasons under FMLA/CFRA, New Parent Baby Bonding, or Pregnancy-Related Disability.    The subsequent offer is “move to COBRA or lose medical coverage” after the end of the month in which the leave began.   It is not necessary to continue this premium contribution because the injury or illness is based on a work-related issue.  Remember, if the employee is covered under FMLA/CFRA, Pregnancy-related Disability, or the New Parent Baby Bonding Leave it is essential that the employer’s portion of the medical premiums be paid for the legally required timeframes regardless of how other leaves may be covered.  Personal leaves of absence (that trip to Tahiti for 4 months) may be treated differently than medical leaves for duration as well as other benefit coverage.

Please call your HR Consultant if you have further questions.

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