Harassment Training Tidbits

When planning your sexual harassment training this year, you need to think beyond what you might have done in previous years. There are specific rules and other things to keep in mind.

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Which Companies — If your company has 5 or more employees, every California W2 employee must receive training before 1/1/2020. We’d recommend including your 1099 workers, too.

Which Employees — Everyone must receiving training in 2019. Yes, even if some of your employees were just trained in 2018, they must go through training again in 2019. Employees with any level of supervisory responsibilities or those with any perceived control over others must receive the 2-hour supervisory training. All others must receive the new 1-hour training.

Timing — We have already received numerous inquiries about training. Slow it down! The problem with training right now is that you are selecting January as your training month for every year going forward. Most companies are busy at this time of year and training is an added burden. Instead, look at your slower times of year and plan your training during that period. There’s no rush to get it done right now… we have a whole year. The initial training must happen within 6 months of hire or promotion to a supervisory position. After employees are trained, the training is repeated every 2 years. You may want to plan for 2 training times each year to allow everyone to participate within the timelines.

Your Trainer — The law allows 3 possible trainers. (1) Attorneys whose practice includes employment law and they have been practicing at least 2 years. You’ll find several employment law firms offer training quarterly. (2) HR professionals or harassment prevention consultants who have at least 2 years of practical experience in designing or providing this type of material. (3) Teachers with a post-graduate or California teaching credential who have 20 hours of employment law instruction under FEHA or Title VII.

Resources — Free online training will be eventually available from California but don’t expect it before July. Inexpensive online training is typically more interesting and the supervisory version is available now. We haven’t yet seen materials for the 1-hour training but it will start showing up soon. In-person training can be costly but it is easier for employees to interact (and not fall asleep).

There is a whole list of what must be covered during the training, which is why it’s important to select your trainer and/or resource carefully. At the end of any training, the employee should receive a certificate of completion (online) or have signed the attendance sheet so you have proof for the files. There is no shortcut here… even the online training is designed to prevent people from jumping ahead. If an attendee leaves a live training, it’s possible they won’t be approved for having attended for the full 1 or 2 hours. This is important but we’re not in a hurry… make a plan for your implementation rather than just trying to cross it off your list.

Or Forever Hold Your Peace

“I have an employee, John, who is a constant problem. Today while speaking with him, he became frustrated with the conversation and said he might as well quit. Later I found myself wishing he had. What should I have done?”

Your HR Survival Tip

As an owner or manager, you need to be alert to things going on with your employees. This situation was one of those perfect missed moments.

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If you have an employee who hasn’t done well, you obviously need to work with them to improve their performance. When the employee isn’t particularly motivated to want to improve, he can become frustrated with your efforts. I have heard John’s comment before. The trick is grabbing that opportunity.

When an employee says something like “well, I might as well quit,” your response could be “Okay, I’ll accept your resignation. Let’s talk about the timing.” It’s likely the employee wasn’t truly serious and was hoping you’d realize they are a valuable asset. It’s a surprise to them when you accept that off-the-cuff resignation.

The other side of this situation is when an employee misinterprets something you’ve said and now believes they have been terminated. Again, you need to react fairly quickly unless that was really what you intended to say.

If an employee knows they messed up, they could be assuming they’ll be fired. Be very clear that wasn’t your intention‚Ķ unless it was. The biggest reason you need to pay attention to this is because, in California, you better have that final paycheck ready if termination is your intent or you’ll be open to fines and penalties.

Ideally, of course, you manage your employees in such a way that neither of these situations would ever occur. However, it pays to keep your ears open for unexpected reactions and your responses timely and appropriate for the situation.

New Year Checklist

“What employee-related changes do I need to think about for the new year?”

Your HR Survival Tip

As we all return to work from the holidays, business owners are faced with items taking effect with the changing of the calendar year. We’ve made it a bit easier for you with a short list for 1/1/2019:

  • As mentioned in a recent article, California has a new state minimum wage of $11/hour (25 or less employees) or $12/hour (26+ employees). However, you need to also check local laws because there are 29 (and counting) localities with higher minimum wages and many of those are increasing, too.
  • When the minimum wage increases, the minimum salary ANY exempt person receives also increases. We only look at the state minimum wage for the calculation but the new minimum will be $3,813.33/month (25 or less employees) or $4,160/month (25+ employees). This is $45,760 and $49,920/year, respectively.
  • The Internal Revenue Service (IRS) has increased their per mile rate to $0.58 (up from 2018’s $0.545). If you pay this rate, both CA and IRS will consider your employees have been fairly compensated for use of their personal vehicles.
  • Order and hang the new employment law posters that include both state and federal laws. They may not yet be ready due to last minute legal changes but at least get your order submitted. My favorite way to buy posters is through this site.
  • Issue a memo with the specific dates of the 2019 holidays you will be observing. Since a few holidays have dates that move around, the memo will let employees plan ahead based on exactly when you’ll be closed during the coming year.
  • Make sure your W2s for employees and 1099s for contractors are scheduled for delivery before January 31st. If any are returned because the person moved, just leave it unopened and put it in their file as proof it was sent on time. They will probably contact you once they start working on their taxes.
  • Review your Employee Handbook for legal and policy updates. Confirm you have the latest California and Federal employee flyers and forms.
  • The one-year clock has now begun on implementing new, mandatory sexual harassment awareness and prevention training for companies with 5+ employees. Supervisory employees must have a 2-hour training and non-supervisory employees will get the new 1-hour training. All employees must have this training by the end of 2019, then are scheduled for future training every 2 years.

There isn’t as much on this checklist as usual because many laws now have effective dates throughout the year. Let us know how we can help you!

Raise Them Up

“I know the new minimum wage goes into effect on January 1st but does it change anything else?”

Your HR Survival TipHR Jungle

California’s minimum wage sees another increase on January 1st in 2019 and 2020 and 2021, etc. However, that’s just the state minimum wage. Many of you may be subject to local laws that are higher or on a different schedule than the state law. San Diego, for example, will increase to $12.00 for anyone working within San Diego city limits.

The new minimum wage in California will be $11.00 (if you have no more than 25 employees) or $12.00 (if you have 26+ employees). Companies with no more than 25 employees will continue to be $1.00 behind larger companies until 2025 when all sizes will be paying $15.00/hour.

One thing the state law affects (and the local laws don’t) is the minimum salary you’re allowed to pay and have someone eligible as salaried exempt. Only the state law applies and it is a calculation based on the state minimum wage of [2 X state minimum wage X 2080]. No matter how few or how many hours your salaried exempt person works, they must be making at least $45,760 (if you have no more than 25 employees) or $49,920 (if you have 26+ employees). If you’re not paying that amount, they will be considered hourly employees.

Do your employees use their own hand tools on the job? You must either provide the tools needed in their trade or you must pay those employees twice the minimum wage.

Any employees with wage garnishments? Pull the documents and recalculate the amount they must pay each pay period because they are now making more money than before.

Watch your payroll calculations if your payroll period includes time in December and January to ensure you’re paying at least the new minimum wage for those January hours.

When you’re feeling a little less squeezed by this new minimum wage, stop and take a look at those employees who were making a little more. Recognize they will no longer be as happy with their wages because they just became closer to being minimum wage workers. They won’t think about the fact that state law caused that 5-8% increase. All they’ll think about is the 2-3% increase they got, if they even got that. Also pay attention to those leads and supervisors because the people reporting to them just got a little closer to those wages.

A new minimum wage has a ripple effect felt throughout the organization. Although few companies can afford to provide company-wide increases, be prepared for the fallout. Just blaming state law won’t make anyone feel better… except those minimum wage earners.

Does Your Company Benefit?

When making decisions, the courts often look at whether or not the company received any benefit from the action or activity. But what does that mean to you? Here are a few examples to consider: HR Jungle

Holiday Party or Other Activities
Although you may not pay employees for attending an event sponsored by the company, the courts have decided the company benefits by having these get-togethers. It boosts connectivity, team building, and morale. Where it may fall apart for the company is when alcohol is served. A court decision said alcohol just made the company responsible for each employee’s behavior at the party, on the road, and at home… until the employee is sober again. This particular issue falls under the legal term of “social host.”

Business Use of Personal Cell Phones
If you are requiring (which is different from allowing) employees to use their personal cell phones for business, your company benefits. The benefits include a savings from having to buy company cell phones and adding them to your telephone plan. Even when that personal cell phone is on an unlimited plan so making those business calls don’t cost the employee anything, a court decision said the company should still pay a reasonable amount toward that plan.

Employee Committee Volunteers
While this may not have hit the courts yet, it has the potential for litigation. If your employees volunteer to be part of a committee to create fun activities for employees, like the holiday party, are you paying for their time? Even if you are allowing the committee to meet while on work time, have you considered the time spent at the activity itself? Are they at the activity and greeting people at the door, handing out tickets for something, or organizing the flow of the event? You might consider paying your non-exempt (hourly) employees for that time because your company benefits from those employees volunteering. Keep in mind your more expensive option would be to hire an event planning company.

Driving Personal Vehicles
If your employees are driving their personal vehicle for work purposes throughout the workday, you do owe them mileage. The commute is not paid but any travel within the workday needs to be compensated. You benefit by not having to provide company vehicles for employees to go from place to place.

Whenever you think you’re getting something for free, think again. Ask yourself how the company benefits from that freebie and what it’s worth to you. There’s a reason for that old saying: there’s no such thing as a free lunch!

Save Yourself

“Employees have been asking for a retirement plan but I’m not sure I can afford it. What are my options?”

Your HR Survival TipHR Jungle

Adding a 401(k) retirement plan to your benefits can be done for as little as $2,000 per year in administrative fees. A 401(k) is a really good benefit to add to your benefit package. However, there is another option coming over the next few years.

California has found another way to protect employees… but this time the employees are being protected from themselves and their poor savings habits. Studies have shown people are saving less for retirement than ever before and California wants to help improve and encourage saving.

The Secure Choice Retirement Savings Program (SCRSP) was enacted in 2016 and will be implemented over the next few years as the CalSavers Retirement Savings Program. At a certain point, if your company doesn’t have a 401(k) plan in place, your employees will be automatically enrolled in CalSavers. Employees will have an automatic 5% payroll deduction put into CalSavers and they must opt out if they don’t want to participate. This is a big change because it requires opting out rather than opting in.

Registration and implementation will start in 2019 and continues until 6/2022. The program is designed to encourage employees to save. Although you’ll have to manage the payroll deductions and transferring the money to CalSavers, companies will have no other financial obligation.

You can either implement a 401(k) plan on your own or wait for CalSavers. However, one way or another employees will be pushed to start saving for retirement.

Holidays Rule

“I have issues with employees who call in sick the day before a holiday or want to work on a holiday so they can take another day off. What are the rules?”

Your HR Survival TipHR Jungle

Holidays are always of interest to employees because it often means a day off. However, there are a lot of little issues that arise, particularly at this time of year.

No law requires you to pay employees for a holiday, even if you close for that holiday. If an employee works on a holiday, they are only legally entitled to their usual hourly rate for time worked.

Given the language of all the various paid sick leave policies, you can no longer require an employee to work the day before and day after a paid holiday. This would be viewed as punishment for taking a sick day and it’s prohibited. What you can have is a policy stating they must work the day before/after a holiday unless they have a pre-approved or excused absence.

Another request we often see is an exchange of one of your holidays for a different religious holiday of the employee’s choice. You do want to allow employees to celebrate their own religious holidays… but you are not obligated to pay for those days off.

Most employees can’t be very productive when nearly every other business is closed. Stick to the days you’ve chosen to close your business. If an employee would like another day off, ask them to request an unpaid day off for the religious day(s) of their choice. Then try to accommodate them if at all possible.

Another part of the policy you might want to review is the qualification for a paid holiday. It’s okay to have distinct groups with different eligibility, such as office staff gets paid holidays vs. field employees getting an unpaid day off, etc. But, with Thanksgiving here and more holidays coming up, look at what your policy says about timing. Do you have a 90-day eligibility period before an employee can have a paid holiday? If you don’t address it, they may think there are several paid holidays coming their way.

Like so many other topics, what happens on holidays needs to be in writing so everyone is clear. Keep the holidays in your Employee Handbook generic (listed but without the actual dates) and the policy easy to understand. Send a memo out now providing the actual dates of holidays you are observing next year. Use both the policy and memo to remind everyone of eligibility. This is a great time of year so make it even better with a well-written policy.

Stopping Accruals

“Do I continue to accrue vacation time for employees on leaves of absence?”

Your HR Survival TipHR Jungle

The simple answer is no. Hopefully you have all your accruals set up through your payroll system. That makes it much easier to manage those leaves in a couple of ways.

First, when an employee goes on any leave of absence, change their status in payroll from “active” to “LOA” or whatever you have set up for leaves. If you don’t have that option, talk with your payroll provider and ask them to add it.

Second, make sure the payroll system stops accruing sick, vacation, and/or PTO whenever an employee’s status is LOA. Once they return to work, you change them back to active so they can get paid and start accruing again.

Third, talk with your payroll provider about a hire date versus benefit date (or anniversary date). The hire date is easy and self-explanatory. The other date might be called different things in different payroll systems. What you want is a secondary date that aligns with the employee’s anniversary date but recognizes when someone is active versus on a leave.

When you have these dates and the status working properly in your payroll system, the employee’s anniversary date changes if they take a leave of absence. Where 7/1 might be the old anniversary, it would now show 10/1 if they had been gone for 3 months on a leave. That anniversary date represents 12 months of work so it doesn’t include the time on leave. This would likely delay their eligibility for the next level of vacation or even their next raise.

If you have any benefits tied to the length of employment or even just a full year of work, you’ll want to account for those leaves. Someone working 9 months out of the year usually shouldn’t be receiving the same benefit as those working all 12 months. Employees like to be treated fairly so don’t give them a reason to believe otherwise.

Sick and Exempt

“I have a manager who is out sick a lot and I’m trying to figure out if unpaid time is an option with exempt employees.”

Your HR Survival TipHR Jungle

All California companies must have a Paid Sick Leave plan in place but the sick leave may also be provided through your PTO (Paid Time Off) plan that combines sick and vacation time. Exempt employees are those paid a salary for doing their job, irregardless of the number of hours worked. Use and payment of sick time with exempt employees is often confusing so you’re not alone.

You can be conservative and pay the exempt employee a full week’s pay even when they are absent. However, years ago, California’s Labor Commissioner provided guidance on exempt absences to help us navigate this tricky situation.

If the exempt employee calls in sick for the whole day:

  • and they have sick time available — you record the sick time used against their balance and they will receive full sick pay for that day.
  • and they have some sick time but not enough for the full day — you record the sick time used (up to their balance) but still pay for the whole day.
  • and they have no sick time left — they can be unpaid that day.

If the exempt employee works part of the day and is sick part of the day:

  • and they have sick time available — you record the sick time against their balance and they will be fully paid that day between the sick pay and regular pay.
  • and they have some sick time but not enough — you record the sick time available (using up their balance) but still pay for the whole day.
  • and they have no sick time left – they are still paid for that whole day

As you can see, if the exempt employee shows up at all and is sick, they must be paid for the whole day. If you have separate sick and vacation plans, you may allow them to use vacation time once they are out of sick time but you can’t force it. Please keep in mind this is for sick leave only; personal/vacation time off has slightly different rules.

Halloween Tricks

“I’m allowing employees to wear costumes at work on Halloween. Should I be worried?”

Your HR Survival TipHR Jungle

Given the news lately about a Halloween costume that backfired and resulted in a termination, you are smart to be a bit worried. People enjoy wearing unusual costumes and don’t always think about how they look in the workplace.

Ideally, you have employees who understand how sensitive others can be. Many companies have been adding T-shirts with sayings or pictures to their list of what not to wear to work. That’s because someone could take offense and companies are trying to avoid claims.

If you didn’t previously send out a notice to employees to be cautious about what they wear, take a walk around and look at what your employees decided to wear. If you believe it could be offensive, ask them to remove the costume or at least remove what they can. In more serious cases, you may have to send them home to change. And, no, you don’t have to pay for the time they are off work to change.

Other employees may realize the mistake they made with their costume choice on their own. These are the people who got carried away and have now found it’s really hard to work in that costume. While the costume may not be offensive, it may not be very practical. However, unless it’s creating a safety or productivity concern, the costume is just uncomfortable and they’ll probably select a different look next year.

If your walk-around results in any concerns this year, make a note now (while you remember) about the rules for next year so you’ll be prepared. It’s great when companies allow employees to have fun on Halloween but the “trick” is to make sure you’re not “treated” to a claim.