Consulting with companies that don’t have or need a full-time HR person (my specialty) continues to bring me surprises. When I first started consulting I discovered that neither the state nor federal government websites offered new employers information about being an employer beyond how to obtain an Employer’s Identification Number (EIN). Not a thing about the fact that hiring employees automatically brings a business into the world of HR … or it should. It was both a surprising and disappointing discovery.

Considering that federal employment laws apply to every employer in the U.S., you’d think some kind of "cheat sheet" would be available to give new (or experienced) employers a heads-up on what they need to do to be compliant with these laws. Yes, you can read the full text of the federal laws but no help is provided in how to implement them or what they mean in the day-to-day running of your business.

I recently reviewed a 45-page booklet provided by the SBA (Small Business Administration). Lots of great information in general for business owners but it only told readers how to get an EIN, not how employment laws may affect how they do business and deal with their employees.

Is it any surprise that so many small (and larger) employers aren’t fully compliant with employment laws? Even the basics are often omitted by a company … usually due to lack of knowledge than a willful omission. However, if you ever ended up with a labor claim or lawsuit, ignorance of the law isn’t considered a defense. A no-win situation. No information and no defense!

Consider this post your information resource for the most basic part of compliance with federal employment laws: the forms you are required to give employees.

• Current federal employment law poster – This isn’t something you need to give employees but you are required to hang the poster in a conspicuous place located where all employees will see it. The usual place is the coffee area, next to the time clock, or other place where everyone has reason to go by it. Sometimes you need to get creative. I know a couple of companies who are putting the information as an addendum to their Employee Handbook because their employees don’t come into the office.
• IWC Wage Order – If you look really close at the margins of the employment law poster you may find a little sentence that reminds you about posting this information but most companies miss it. The Industrial Welfare Commission (IWC) has created 17 different wage orders, each directed toward specific industries. You need to determine which IWC Wage Order fits your industry, print it out (about 14 pages), staple it together, and stick it on the wall next to your employment law poster. This gives all the minute details about the wage and hour laws affecting your industry. There may be subsequent "interpretations" written about how to implement this wage order but those don’t need to be posted.
• IRS W-4 form — This is the one form that everyone seems to use … but that’s only because it has information you need when putting an employee on payroll. Although the Internal Revenue Service (IRS) issues a fresh copy each year, nothing but the year imprinted on it has changed in a long time.
• INS I-9 form – Although the Immigration and Naturalization Service (INS) created this form many years ago, it’s been taken over by Homeland Security. That means the form has seen several updates in the last few years and another is expected mid-2009. This form needs to be fully completed within 3 days of an employee’s hire date. There are fines and penalties for partially completed forms, so be sure to finish what you start. The point of this form is to ensure you have hired a person legally authorized to work in the U.S. The documentation an employee may use to prove that is what Homeland Security continues to change. While the form continues to evolve, you don’t need to have a new one completed each time. Just use the newest form with new employees. If an employee is using documentation that expires, you will need to follow up and record the updated documentation as needed.
• Initial Notice of COBRA Rights — You only need to worry about this if you are providing benefits to your employees that are subject to COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985). This issue just got more complicated with Obama’s stimulus bill, so check with your insurance broker to ensure you are doing everything you need for this. The point of this notice is just to let new employees know that, if employment ends, they may be able to continue their benefits via this law.
• Workers’ Compensation Insurance brochure — This is a brochure that you should be able to obtain for free from your insurance carrier. The brochure provides basic information on what the insurance covers and what the employee should do if an injury happens.
• Sexual Harassment brochure — To be honest, I don’t know that this brochure is "required" but I feel it should be (and is in California). It’s a simple brochure that provides a description of sexual harassment and what an employee can do about it. This is really only the tip of the iceberg on this topic and I would strongly recommend you also invest in some type of recorded training that becomes part of your orientation. This is still the most common area for lawsuits so it’s worth the investment to ensure your employees understand what harassment is and, as importantly, that you don’t condone or tolerate that behavior.

California also has several state forms that are required but this post is only about the federal ones. Once you start using these forms, you’ll find that it really isn’t that much extra effort to minimize your company’s risks. You can get the latest versions of INS I-9 form, IRS W-4 form, and COBRA notices here (HR Jungle’s free HR forms). If you have employees that have never received these forms, it’s better late than never to work on being compliant with them. So, get your materials ready and go "paper" your employees!

This year is the first that I can remember where there were more Federal changes to employment laws than California changes. That alone is historic! But the changes to COBRA  almost seem like they should have been California’s idea because they are so favorable to the employee … or, in this case, the ex-employee.

The American Recovery and Reinvestment Act of 2009 (ARRA) was passed on 2/17/09 as part of Obama’s stimulus package. Employers subject to COBRA will now be providing a subsidy to offset the cost of COBRA coverage for employees who were (or are) involuntarily terminated (fired or laid off, unless terminated for gross misconduct) between 9/1/08 and 12/31/09. Yes, it’s retroactive!

You only have until 4/18/09 to get notices out to the affected employees and must send a notice even if they did NOT elect to take COBRA when it was previously offered to them. New employees and newly terminated employees are to receive special notices of these COBRA changes. These model notices can be found in HR Jungle’s free HR forms.

The subsidies are for up to 9 months for COBRA-eligible employees involuntarily terminated and also for affected spouses and dependents who are COBRA qualified beneficiaries. The simple explanation of this subsidy is that the employee/dependent only pays 35% of the COBRA premium and the employer pays 65%. You then get reimbursed for the 65% through a federal payroll tax credit so be sure to keep good records on the financial side of this. The subsidy ends when the eligible employee or dependent (1) gets other insurance coverage or (2) the 9-month subsidy period runs out or (3) their COBRA period ends.

Another aspect of ARRA is that you can offer these employees/dependents different coverage than they had pre-COBRA as long as it costs the same or less, is also offered to active employees, and is not just an add-on coverage (like dental-only, etc.) without including medical insurance. If this option is offered, they only have 90 days after receiving the notice to switch their benefits.

What to do?

Download the new model COBRA forms that the Feds have created. You’re not required to use them as-is but using them will be much easier than creating your own.

Make sure the General Notice is given to new employees with other new hire paperwork. This works for companies subject to either COBRA or Cal-COBRA (California’s version of COBRA for employers with only 2-19 employees). Also distribute the General Notice to all current employees eligible for benefits (whether they participate or not).

On or before 4/18/09, send the Notice in Connection with Extended Election Periods to any eligible employee/dependent who was originally eligible for and offered COBRA from 9/1/08 through 2/16/09. Yes, also send it to those people who declined COBRA. This extended period does not apply to state mini-COBRA coverages, like Cal-COBRA.

You will be wise to coordinate with your insurance broker to ensure you are providing the appropriate forms to the right ex-employees. You might also ask if they are planning to add any services that help with the administrative side of this new law.

       Over the years I’ve been in HR, it’s been interesting to hear other people’s comments about how HR fits within a company. I’ve met executives with large company experience who feel HR is "the dreaded HR entity" that exists simply to make it impossible for them to do business.  I’ve met small business owners who have no awareness of HR at all. These are the extremes.

The dreaded HR entity is the box. That HR is blindly doing it’s own thing by enforcing rules, nitpicking, and ignoring the rest of the business. Sadly, this really was HR for years and years. And, in many companies, it still is their HR style. It’s this very reputation that has made it so hard for HR to prove its usefulness in helping companies save money by making better hires, increasing productivity, and reducing lawsuits and claims.

I’m not a fan of the box. Let me share my thoughts about HR in general. HR represents everything employee-related within a company and, as such, is considered a complete department regardless of the number of HR people in the department. HR strives to find a balance between the needs of the employees and the company’s ability and willingness to meet those needs. The ultimate goal is to have an effective and efficient workforce that helps the company achieve its goals. 

HR flows downhill. The behaviors, goals, and ethics of your company’s senior management team dictate how employees behave at work. HR is unable to successfully create or enforce policies that are not in synch with senior management’s actions. 

Your HR should grow in accordance with your company’s needs. Initially, HR comes in the form of a consultant when your company is small and doesn’t yet have a need for an experienced HR person on staff. Eventually, as your company’s needs grow, an HR person is hired and steps into the HR role created by the consultant. Depending upon the knowledge and experience of the person hired, the consultant may continue the relationship with your company by providing training and oversight to the HR person that was hired and higher level HR advice to the management team.

I believe HR should slide easily into a slot within your company, just like accounting does. You don’t consider letting a department do whatever it wants without considering the financial side of the picture, do you? Well, anything that involves employees should have you considering the HR side of the picture. And, since employees are often found throughout a company, there is very little that goes on within your company that does affect the employees in some way.

Adjusting your perception of HR so you see it as an integrated part of doing business will make being an employer much easier. Done correctly, HR does its job and helps everyone else do their jobs even better.

It’s important to remember that developing an effective HR department, along with appropriate practices and policies, requires significant knowledge and experience. Don’t fall into the trap of thinking your accountant, insurance broker, or admin person is able to provide you with sufficient HR advice … you’re taking a huge risk with your company’s future if you really believe that.

Yes, it’s been several months since I’ve posted anything here. But I have an excuse … well, for some of the time anyhow.

In September, I was diagnosed with conjunctival melanoma. That’s melanoma on the white of my eye. Surprise! It’s very rare and most people, myself included, have never heard of such a thing. I lucked out by going to the right doctor that had actually had a couple of cases.

The thing is that because it’s on the eyeball, they can’t do a biopsy like other places. It actually takes surgery just to do a biopsy. My October 6th surgery confirmed it was melanoma … and that the surgery didn’t remove it all. My second surgery was 2 days before Thanksgiving and, fortunately, everything came back negative.

So while I haven’t been blogging here, I have been blogging about my eyeball (www.westrick.us) for those interested in the gory details. I still can’t wear my contact lenses again yet but, for all appearances to most people, my eye looks normal and feels fine now.

Okay, so that was a really great excuse for a limited time but I’ve still been very slow to get back on the HR blogging wagon. I was procrastinating because I need (really need) to update the software I’m using for this blog and want to change the look to match the new look of the rest of my site. Yeah, yeah, blah blah blah.

However, I’m done waiting for other things to come together. You’ll have to live through the growing pains with me because I’m ready to blog!

Please join us for a free webinar: "Discover What Small Businesses Must Know BEFORE Hiring"

Have you ever done the math in regards to your hiring practices? How many times have you thought you made the right hiring decision … only to find out that your new employee doesn’t know half as much as you thought?

The whole process of expanding your business can be daunting if you don’t have a plan. Since we know that hiring employees can be a valid option to help grow a company, why do so many business owners procrastinate? Could it be that it’s simply because you see hours, even days of effort ahead of you before any relief comes your way?

Of course, there’s also the fear involved in making a bad hire. And, yes, you can count of many more hours of effort managing that bad hire. Even worse, though, are those of you who spend an inordinate amount of time trying to salvage that bad hire because you just don’t want to go through the recruiting process again.

It’s best to do things right … right from the beginning. You’ll save time and money once you discover how to plan and prepare for a new hire. Developing an easy-to-follow system will take away the headaches and worry about growing your business with employees. As you may have already found out, it’s better to spend a little more time before hiring than a lot of time later on trying to fix a hiring mistake!

This webinar will cover:

• Determining the right solution to help your business grow
  
• Justifying the business need for additional employees and the options available to handle that need
  
• Creating a job description that makes it easy to determine which candidate is the best candidate and protects your company
  
• Pre-employment testing … when, why, and how
  

Register NOW!

HR Jungle’s monthly webinars each cover a specific HR topic directed toward the small business owner, with C.J. Westrick SPHR presenting.

Title:  DISCOVER WHAT SMALL BUSINESSES MUST KNOW BEFORE HIRING
Date:  Tuesday, August 19, 2008
Time:  8:00 AM - 9:00 AM PDT

The huge number of California employment laws can leave business owners with the feeling that they aren’t actually in charge. While it is true that there are plenty of laws dictating your behavior in the workplace, you need to remember there are even more areas where you need to take charge and set the rules.

Recently I was asked a similar question by people from two companies. The issue was really quite simple (personal cell phones at work) but it was the thought process that really interested me. One company merely asked if they could tell employees not to bring their cell phones to work. Assuming your company allows employees to receive emergency phone calls so they don’t need another method for someone to reach them in an emergency, then the employee doesn’t need their cell phone while working.

Having an employee give up their cell phone isn’t as easy as you might think. The other company I mentioned tried to have employees leave their cell phones at the front desk while working. At least one employee loudly raised the issue that the cell phone was personal property and, therefore, the company had no right to take it away from him.

As the business owner, you do have the right to make your facility a cell-phone-free zone. How you go about creating that zone is something you need to think about. First, you need a policy that specifically states the rule, what employees can do with their phones, and the potential penalities for not following the policy.

I dislike the idea of collecting cell phones because you then become responsible for them and have to create a secure check-in, check-out system. That leaves you a few other obvious choices: tell employees they can leave their cell phones at home, leave them in their car, leave them in a company-provided personal locker, or to turn off the phone while working and leave it in their pocket or bag. The employee does have the right to use their cell phone during meal and rest breaks but you can designate where they can use them, such as the lunch room and outside the facility.

As a side note, some companies now prohibit camera cell phones in certain areas of the company where there is access to confidential information. It’s just too easy to take a quick picture with the phone of information in paper form or on a monitor. However, if you plan to use this reason for your policy be sure you can show that it’s a security issue or you could lose that battle in court.

Probably the biggest part of this whole subject is what happens when an employee doesn’t follow your new policy. While you can’t do a strip search to find out if they brought their cell phone into the workplace, you may see them on their cell phone or hear the phone ringing or notice it vibrating when it should be out of sight and/or turned off. Something will probably eventually give them away. So do you take their phone away and stomp on it? That may make you feel a little better at that moment but it’s not the best way to handle the situation.

You treat this like you do any other action or behavior that breaks a policy. It’s treated as a performance issue and you follow your disciplinary policy. When creating your cell phone policy, your management team needs to decide how serious of an issue this is and how far you’re willing to take the discipline. If all you ever do is shake your head and have yet another conversation with the employee, your employees will soon realize you aren’t serious about the policy because there aren’t any serious consequences.

Avoid discrimination when creating a new policy by remembering you have to take the same disciplinary action against every employee who doesn’t follow the policy … that means your best employee and your worst employee must be disciplined in the same way. Never put a policy in place if you aren’t prepared to enforce it. Your practices and policies must be in synch to be of any use to you … and protection for you.

Homeland Security has once again revised the Immigration & Naturalization Service’s I-9 form. As usual, you can get immediate access to the latest I-9 form on my website.

Just so you know what to look for, the newest version has an 06/30/09 expiration date in the upper right corner of page one. Although this doesn’t affect any of the I-9 forms you’ve already completed and have on file, you should discard any blank copies of other versions and start using this latest version immediately.

As you’ve probably noticed, California is always leading the way for new employment laws. However, within California, that leader is San Francisco and it’s often scary to realize what local laws San Francisco has enacted. Let’s just say that, while it’s tough doing business in California, it’s tough and expensive in San Francisco.

The latest bill to hit California proposed by a San Francisco Assemblyman concerns sick leave. This bill, AB 2716, has already made it past the Senate Labor and Industrial Relations Committee and is lined up for the Appropriations Committee. So what’s so bad about AB 2716? It forces every business in California to provide a specific minimum amount of paid sick leave to every employee.

Here’s the actual language:

This bill would provide that an employee who works in California for 7 or more days in a calendar year is entitled to paid sick days, which shall be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment. The bill would require employers to provide paid sick days, upon the request of the employee, for diagnosis, care, or treatment of health conditions of the employee or an employee’s family member, or for leave related to domestic violence or sexual assault.

Now for those of you who are running the math through your head, let me help. A full time employee working 40 hours per week would accrue 66.67 hours of sick leave over a year if the employee worked 50 weeks (assuming a 2-week vacation). That’s 8 1/3 days of paid sick leave per year you will be required to provide if this law is enacted. However, there is a clause that says small businesses only have to allow 5 paid days per calendar year. But it neglects to define "small businesses."

Let’s not forget all those part-time employees! Yes, the law specifies EVERY employee. So even those part-timers who you haven’t been giving any benefits would be accruing sick leave based on hours worked.

The unused sick leave would carry over from year to year but, as now, does not get paid out upon termination of employment. This means the way you give and track sick leave would need to be a true accrual method (normally maintained through your payroll system).

While I believe a certain amount of paid sick leave is normal for full-time employees of small businesses, few small businesses offer more than a week of sick leave. And even fewer companies offer any sick leave to part-time employees. So, you’ve been warned. Now all we can do is wait and watch to see what happens with this bill.

It’s mid-year and there are a few changes that have come into effect now.

Hands-Free Cell Phones While Driving

I’ve discussed this before, but now it’s actual law in California that you cannot hold onto your cell phone while driving. It’s time to make sure you have a policy about this and that all your employees understand your policy.

I’m watching for the next stage of this law, which will probably be amendments about how to dial without using your hands. Early studies have already shown that it’s talking on the cell phone that distracts drivers much more than holding the phone. We’ve probably all experienced that problem … passing our freeway exit or turn because we’re deep into a conversation. I guess the advantage of this new law is that at least we’ll have both hands on the steering wheel when we make those sudden turns!

IRS Mileage Reimbursement

We’ve all been complaining about gas prices so it should come as no surprise that IRS has been listening. IRS has increased their mileage reimbursement rate from $0.505 to $0.585, effective July 1, 2008.

Now here’s a little food for thought about mileage reimbursement for your employees. Most small businesses that I know seem to dislike using the IRS reimbursement rate when it comes to reimbursing employees for business travel. Yes, I know you want to save money but let’s think this through. The IRS rate is the generic, approved rate you know you can claim for your business taxes (otherwise, you have to track actual costs of using the vehicles). The rate is meant to include the wear and tear on the vehicle itself (oil, tires, depreciation, etc.) plus the cost of fuel.

Okay, so if your business can claim the IRS rate as an expense, why are you failing to fully compensate your employees for the business use of their personal vehicles? You do realize that the employees are doing you a favor by adding miles and wear and tear on their personal vehicles so you can avoid purchasing company vehicles, don’t you? Yet, you actually make them pay for the "honor" of providing you with a vehicle for your business purposes. If you’re not paying the IRS reimbursement rate, your employees are probably losing money. Yes, they can actually apply for the "lost money" on their personal taxes if they think of it … but why should they have to go to the extra trouble while doing you a favor?

New Minimum Wage

On July 24, 2008, the new federal minimum wage of $6.55 per hour takes effect. Now, my California readers won’t need to worry about this because our state minimum wage is already much higher at $8.00 per hour. The rest of you, however, need to be prepared.

Have you ever watched your employees when they are getting coffee in the morning, taking breaks, or having lunch? Unless they’ve been around awhile, they are probably searching through any cupboards and drawers in the area to see what the company has provided.

Does an employee have any right to expect you to provide condiments, coffee, etc.? No. Providing things for employees is a benefit offered by the company, not a right or entitlement of the employee. However, you might want to consider the advantages of providing basic kitchen supplies … even if you don’t actually have a kitchen available.

Nearly every office space has some sort of wet bar or a full-blown kitchenette. I’ve seen a lot of them in every configuration possible. The first recommendation I need to make is to keep it clean. It’s amazing how employees can ignore spills, open cupboard doors, and trash sitting around when it’s not in their own home.

Accept this as a fact of life. Pay your cleaning people to scrub it down any time they are cleaning the offices. This isn’t just for the benefit of the employees … keep in mind that you have guests walking through the building that can see this area. I don’t care how much stuff you stock that area with, if it’s filthy you’ll have lost most of the value of providing it.

So, what do you provide? The starter stock should include the following:

• Salt and pepper: Buy an actual salt and pepper shaker and the big cannisters to refill the shakers. Don’t buy those individual packets because it’s too easy for people to grab a handful to keep in their car, etc.
• Plastic forks, spoons, and knives: Buy big boxes of these and designate drawers to put them in.
• Paper dishes: You really only need paper plates. Anything else (like paper bowls) is catering to a specific employee’s need, not a general need.
• Condiments: If you have a refrigerator you should consider catsup and mustard, maybe mayonnaise. Again, full bottles rather than individual packets.
• Trays: Pick up 2-3 large, inexpensive trays that can hold sandwiches, cookies, cakes, etc. when you either have a big meeting or party at work. Check places that provide catering supplies.
• Coffee: Provide a coffee maker of a size that works for the number of coffee drinkers you have. Consider using a decent brand of coffee so it’s not a bad joke and you’re not embarassed to offer it to guests. Personally, I hate the powdered creamer but it’s easier to maintain than the dairy versions. Don’t forget both real sugar and fake sugar.
• Napkins or paper towels: Paper towels are fine until you have guests and want to have things look a little nicer.
• Styrofoam cups: Although not eco-friendly, these at least are clean. If you don’t have a dishwasher to ensure glass items are properly cleaned, the throwaway variety might be better.

Anything else you provide should be because you can afford to keep it in stock and you believe employees will be appreciative. Many companies also keep a locked cabinet filled with special supplies that are used strictly for guests or special meetings. The cabinet might include nicer dishes, doilies for the trays, napkins, sugar cubes, bottled water, sodas, etc. Anything you might want to "put on a show."

If you have a refrigerator that employees can use, make it clear that everything ends up in the trash on Friday night. This eliminates the mystery food left in the refrigerator or freezer. Don’t allow exceptions or you’ll lose control of the situation. I’ve seen refrigerators too full to add your lunch but with no one claiming ownership of anything in there.

As I said, providing these things aren’t a requirement. However, your employees will enjoy having the basics available and may end up more productive because they’re bringing their lunch rather than taking longer going out.