“I’ve heard about a new leave of absence but not sure it applies to me. What are the details?”
Your HR Survival Tip
California enacted a new law that goes into effect on January 1, 2018. It’s called the New Parent Leave Act (NPLA) and only applies to companies with 20 to 49 employees.
Previously, only companies with 50+ employees were required to give employees time off for maternity and paternity leave. The NPLA will offer a similar leave for employees working in smaller companies.
There are eligibility rules:
- The employees must work at a location where the company has 20-49 employees within a 75-mile radius;
- The employee must have worked for you for at least one year; and
- The employee must have worked at least 1,250 hours in the 12-month period prior to starting this leave.
This unpaid time off is protected so you must give the employee the same or similar job upon their return. The leave is designed for baby bonding and can be used all at once or in pieces any time within the 12 months after a child’s birth or adoption. Employees will be eligible for Paid Family Leave, which is a supplemental pay from the state (not another leave).
NPLA finally allows men to take paternity leave without the concern of losing their jobs. And women will now have more than just the disability leave available. Be sure you handle this properly and use forms that will document the request and use of this leave.
“I’m working on my performance reviews for employees and need advice. I really hate writing anything negative and know I tend to gloss over those areas. Instead, I might put something like “Needs to work on communication.” in the review. Is that sufficient?”
Your HR Survival Tip
Let’s think about the purpose of performance reviews. Whether they are long or short, annual or frequently provided, this is an important piece of paper discussing the employee’s performance (and future career) with you.
When you play the avoidance game, on a review or in person, you are doing both the employee and your company an injustice. Employees need both positive feedback and constructive feedback (notice how I avoided the word “negative”) on a regular basis so they feel good about the work they are doing. Even the best employee likes to receive an acknowledgement of a job well done.
The employee who isn’t doing so great wants to know how to do better and your “needs to work on communication” is useless. What does that mean? In what way aren’t they communicating well? To/with whom? Instead, provide a specific example with a desired result. Without detailed information from you, Tom didn’t know where he went wrong or how to do it better in the future. Even positive behavior needs to be supported so they know to repeat it.
- Tom, when the rep from Galaxy called to ask how the project was going, your only response was “fine.” Our preferred method of communicating with clients is that we give a brief rundown of the status, such as “We have completed phase 1 and started phase 2 on Monday. We expect to be ready for your input by Friday but we’ll email you once we’re ready for you to look at it.”
- Tom, when the Office Manager from Galaxy called about a missing item in their delivery, you told her to email you with the order information and hung up. Our preferred method of communicating with clients is that you first apologize on the company’s behalf for their order being wrong. Then you pull up the order and ask which item is missing so you can have it delivered to her. Let her know when to expect it and inform her that you’ll pass this information to shipping so they can improve their processes.
- Tom, you did a fabulous job with Galaxy when they called with a complaint. They ended up placing another order and were happy to receive such great treatment from you. This was a great example of outstanding customer service.
Aside from making it easier for employees to understand what you want, you have something in the file that really shows the true quality of their work. When you slide over the hard parts, you make more work for yourself and may even create a legal nightmare.
If you end up terminating that employee because they didn’t improve, that “average” performance review often comes back to bite you. Employees have been known for producing that “average” review they received only two months before they were fired for poor performance… and asking how they became such a bad performer in such a short period of time. Do you really think it’s easier to fire someone than telling them there’s a problem with their performance?
If you are supervising employees, you need to learn to be honest about performance but not brutal. Learn how to give constructive feedback that doesn’t immediately make the employee defensive… consider feedback a training tool. Also, if you’re providing feedback on a consistent basis, you’ll both find it easier because the feedback is coming in small pieces. Once the feedback is a regular part of what you do, the review is merely summarizing those conversations.
“I front-load the sick leave for my employees and let them use it immediately. I was told I might want to reconsider but they didn’t say why.”
Your HR Survival Tip
You really should make sure your policy has considered all aspects. Then, if you want to keep it as you have it, at least you’re doing it with full knowledge. As a reminder, most paid sick leave laws allow companies to either accrue sick leave hours over time or to front-load, which means the whole amount for the year is provided at the beginning of that year.
One of the core promises to employees with the paid sick leave laws is that the employee’s job will be protected when using their sick leave. One of the nods to businesses is allowing companies to wait 90 days before that sick leave is available for an employee to use.
The first 90 days of employment has historically been the time when both the company and the employee check each other out and determine if this will be a good fit. When you allow the employee to use their sick time within that first 90 days, you’ve severely reduced your ability to terminate an employee who demonstrates poor attendance.
If your new employee uses all her sick time up in that first 90 days, you have to ignore that completely because it was protected time and can’t be used against her in any way. What if the absences continue after the 90 days?
Yes, additional time off would be unpaid. And, yes, you could eventually terminate for attendance. However, now you have more time and money invested in training this employee… which always makes it harder to decide to terminate. We’ve heard it too often: “We’ll give her more time and see if she improves.” “I just don’t have time to recruit and train someone new right now.” Then it’s 6 to 9 months later and it might be too late to use poor attendance as a reason for termination when you’ve allowed it to go on so long.
Use the initial probationary period wisely. Pay attention to your new employee and set her up for success. Then you can decide if she was a good hire or you should just cut your losses and move on. You don’t want to be overly critical when someone’s new but you do want to see they are adjusting to your culture, adhering to your policies and practices, and are taking the initiative in proving themselves.
The initial probationary period is sometimes called the honeymoon period… you each are showing your best. The question is, are you happy with her best if she’s absent a lot in the first 90 days? And are you willing to ignore one of the few breaks California provides employers?
“I’m using a job application I purchased at an office supply store. I’ve been assuming the application is compliant since it was sold to me in California but could I be wrong?”
Your HR Survival Tip
Yes, you could be wrong. Although the form is being sold in CA, it could be one of thousands printed and distributed nationwide. The problem isn’t where you buy it, the problem is what it might ask.
As California continues to add laws, every employer must give some thought about what has been added to your list to remain in compliance. Here are a few things you need to check on that application form:
- Does it specify that you conduct drug testing and/or background checks? … Add it. This goes at/near the top of page 1 if you do either so applicants are notified.
- Does it ask for a date of birth? … Remove it. Laws prevent you from considering age.
- Does it ask what year they graduated from high school or college? … Remove it. Again, this is because it lets you calculate age. You may ask IF they graduated but not when.
- Does it ask about felony convictions? … Remove it. There is a new “ban the box” law going into effect 1/1/2018, with an added ripple effect regarding background checks.
- Does is ask for wages at previous jobs? … Remove it. This is thanks to another new law going into effect 1/1/2018. You now need to be prepared to provide a pay scale upon request but you cannot ask about an applicant’s previous earnings in any way. The purpose is to ensure you are paying fairly for the job itself, without regard to the prior earnings of the candidate.
- Does it end with a section asking if the information is accurate and authorizing you to confirm what they entered? … Add it. Why bother having them fill out an application if you aren’t doing anything to confirm its accuracy? Consider it your due diligence in hiring.
For better or worse, more employment laws are enacted every year. And people seem to become more litigious every year. It’s important to have a professional check your employment documentation annually to confirm you’ve made or have the latest updates. Let us know if you want help!
“I’m hiring more employees but friends are warning me about what not to ask. How do I know what I can and can’t ask?”
Your HR Survival Tip
The biggest problem with interviews is when you veer off questions about the work and start asking more personal questions. You may think they are job-related but are they really?
When you ask something, think about what you really want to know and adjust your question accordingly. While the candidate can volunteer personal information, you can’t ask for it. Here are some examples of the most common questions that will get you in trouble. The first question is the wrong thing to ask, followed by your legal option(s):
- Do you have children?
vs. Are you able to work overtime or come in early when needed? Can we depend on you being at work every day?
- How old are you?
vs. Are you over 18 years old? (And stop. There are no other questions you can ask.)
- When did you graduate from school?
vs. Have you graduated? Do you have a degree/certification?
- Do you have a car?
vs. Do you have reliable transportation to ensure you are at work on time every day? (And, no, you can’t ask to see their driver’s license during the interview because it shows their age. But you can ask if they have a valid driver’s license.)
The easiest way to know what you CAN ask is to always format the question in a way that directly relates it to the job. You don’t care if they have children… you care if they aren’t available when you need them to work. You don’t (or shouldn’t) care how old they are unless you have to deal with child labor laws. You don’t care when they graduated… you care if they have the education the job requires.
If your question really reflects something you need to know about the candidate to determine if they are a good fit for the job, there’s a way to ask it legally. It just takes a bit of thought.
Apparently crossing one’s fingers in hopes the Governor wouldn’t sign all the employment laws put in front of him doesn’t work. I know this because the following laws were signed and will go into effective in 2018:
SB63 mandates you must allow up to 12 weeks of unpaid time off for parental baby bonding leave. This new law hits companies of 20+ employees but eligibility rules apply. You are also required to maintain and pay for health insurance while the employee is on this leave. This is protected time off so you must give the employee their “same or similar position” upon their return to work. Previously, this type and length of leave was only available for employees of companies with 50+ employees.
Prior Salary History
AB168 will prohibit companies from asking applicants about their prior salary/wages at previous jobs. You may also be penalized for not providing your pay ranges when requested. The concept is to ensure you are paying a fair market value for the position itself rather than basing the wage/salary on what they previously earned. In theory, this may also make it harder for the applicant to ask for a higher wage based on wanting to make as much or more than they were previously earning. Make sure you eliminate the salary question on your employment applications.
AB1008, also known as ban-the-box legislation, prohibits you from asking about criminal history prior to giving the applicant a conditional offer of employment. We believe this means no background check that includes criminal history until after you’ve made a conditional offer. Then the applicant has 5 days to refute what you found, if the findings result in a retraction of the offer. Legally, you will have a few hoops to jump through with required documents. This law affects companies with 5+ employees.
One thing these new laws have in common is the need for you to document everything. Some of the documentation will be required by law and the rest is needed to protect your company. While we’ve always recommended documenting, now it’s becoming crucial to avoid penalties and lawsuits.
Often, when people think about sexual harassment, they have images of someone being groped or crude suggestions. However, in a legal sense, harassment definitions are like The Blob… continuously growing and moving.
The California Chamber of Commerce’s HRCalifornia Extra recently came up with a list we like because it highlights some often overlooked things that might be considered harassment today.
- Social Media — We now need to pay attention to what coworkers say to other coworkers in social media during or after hours. Just because they post something after work doesn’t mean it can’t feel harassing to the employee receiving the post. And you’ll need to deal with it.
- Looking — Female employees told me how uncomfortable they were because a male employee was watching them whenever they left or entered the workspace. Staring, glaring, and leering is often offensive but won’t always be harassing, depending on the situation. Just looking at someone isn’t the problem; the problem is when it makes the other person uncomfortable.
- Field Employees — Whether you have field employees going into other companies or you have another company’s employees coming into your business, you need to be aware of harassment potential. Yes, you can be held liable for allowing someone into your company who harasses one of your employees. Plus, you can be sued if your field employees harasses someone at a client or vendor site.
- Not Sexually Motivated — There was a court case about several guys making sexual comments to one guy. They said there was no sexual intent so it couldn’t be harassment. The judge disagreed. Harassment is harassment, with or without sexual intent.
- Consensual Relationship — Office romances happen so how do you tell those who are together by choice versus those who might feel forced into the relationship? Some clients use a written Consensual Relationship Agreement to take harassment off the table. For the rest of you, look for the power… are you aware that one of the people in the relatiosnhip might have power over the other? If so, look deeper.
- Once is Enough — While severe or pervasive behavior may be the standard, it doesn’t mean a single event can’t be harassing if it is severe or blatant enough.
- Keeping Quiet — Just because a person doesn’t tell someone to stop, doesn’t mean they like what is happening or what they are hearing. They could even laugh when you tell a joke and later file a complaint about that joke.
- Complaint Format — As a California business, you are now required to have a written Harassment Prevention Policy distributed to all employees. You also need to give employees a way to make a complaint other than in writing. Your managers need to be trained so they can recognize the different forms of potential harassment and report it so you can investigate appropriately.
- Higher Bar — When writing a harassment policy, have a policy that is more strict than the law. This way you’re dealing with failure to follow your policy before you’re dealing with violating harassment laws.
- Confidentiality — No matter how much an employee may beg you to keep what they tell you confidential, it’s just not possible. You can promise to maintain confidentiality as much as possible, but you can’t investigate the claim if you can’t talk to others. Every person in management must know to report potential claims, even if it doesn’t follow the chain of command.
Employees want and deserve to work without being harassed or feeling uncomfortable. You have a legal responsibility to make that happen but the first step is recognizing all the variations of harassment. Consider training every supervisory employee, even if you aren’t legally required to do so. In the end, the cost of training is extremely low compared to the risks resulting from a lack of training.
“I’m considering providing raises soon but don’t know how to approach it or what is considered a normal increase now.”
Your HR Survival Tip
Wage increases can be tricky because you have to watch minimum wage changes that may also affect your bottom line. While the voters have said they want minimum wages to increase each year, they didn’t tell us how to come up with the extra money or how to avoid the ripple effect of higher wages.
The latest statistics show 3% is the average increase planned for 2018. That’s actually a tiny bit higher than we’ve been seeing since the recession but you have to be counting your pennies to notice the difference.
Depending upon your work location, many hourly employees have been seeing double-digit increases thanks to increases in minimum wage. While you can’t view those increases as employee rewards, I know they do play into the bigger picture of the cost of employees. When wages increase… your taxes increase, your workers’ compensation insurance premiums increase, and the cost of paid time off is now more.
Remember to review any salaries you’re paying. There is a minimum salary (currently $41,600) that increases every time the state minimum wage goes up. If someone’s salary is so close to the minimum that you need to worry about it, question whether the position is truly exempt.
I’m not a believer in cost of living increases for your workforce. I strongly believe in merit increases or other types of rewards for employees who are helping your company move to the next level. Why pay more for employees who just show up for work?
Most companies are finding other ways to reward employees that don’t include pay increases every year. Consider short and long-term incentive plans, milestone bonuses, etc. Maybe you’re willing to bonus an employee who goes to the effort of being cross-trained so you have a more flexible workforce. Really brainstorm ways to reward employees for performance that don’t permanently increase your costs. Let us know if you want help!
“I am interested in adding health insurance coverage for my employees. What are most companies paying toward employee premiums?”
Your HR Survival Tip
In our opinion, too many small companies are paying a higher percentage toward the employee’s premium than we prefer.
While larger companies have moved toward bigger co-pays for employees, we are seeing small companies often paying 100% of the employee-only premium. This is not what we advise.
Small companies have only so much money they can pay toward employee benefits and you’re paying higher prices than large companies due to your small group. When you pay 100% of the most costly benefit (health insurance), you are often using up all your benefit dollars for that one benefit. You also get employees signing up just because it’s free… even if they have coverage elsewhere.
If you pay 90%, that’s still a great benefit at a very low cost to the employee. If even one employee doesn’t sign up (because they have other coverage), you are saving at least $200 per month. You may even save the same amount just from the 10% you’re not paying toward their premium.
Your $200+/month savings equals $1,200+ over the year. This would make a big dent in the administrative costs of a 401(k) plan, or pay for a dental and/or vision plan, or pay for life insurance, or pay for an EAP (Employee Assistance Program). Wouldn’t employees feel you have a more comprehensive benefit program if it included more than just health insurance?
Ensuring your employees have health insurance doesn’t mean you need to go overboard with your offering. Most small companies require the employee to pay the whole cost of dependent coverage. What if you only paid 75% of the employee-only coverage but now could offer 25% toward dependent coverage? Look at the demographics of your employees… are they primarily single, married, have families? Do you know if the spouse is working and also has coverage?
Make sure your benefit dollars are being used for the right benefits that will be viewed by your employees as a real benefit. They don’t always want what you may want or feel they need. Develop a benefit program that fits your employees and helps your company with recruitment and retention. Talk with us about your plan design.
There has been activity in two areas regarding employment law in California. One is deemed to be good, even great, news and the other is not so great for smaller companies.
The good news is a court ruling that may affect many of you regarding vacation pay. A company had a policy stating employees earn one week of vacation after one year of employment. When an employee left the company after 6 months, he filed a claim that he was due half the vacation promised after one year.
CA law states earned vacation time is part of the employee’s wages and it is earned each day of work. Vacation time, once earned, cannot be lost… it is used or paid out. If the employee doesn’t use their earned vacation, the total unused time can be limited by a cap that will make the employee stop earning more vacation time until the employee’s balance is below that cap.
A 2009 court case decided the employee was due a portion of the first year’s vacation. However, in that case, the company’s policy stated employees earn one week of vacation during their first year of employment but they couldn’t use it until after one year. Since their way of writing the policy made it clear vacation time was being earned in that first year, the company had to pay out the earned time.
The most recent case was different because their policy specifically stated the employee earned no vacation during the first year of employment. Take a look at how your policy is written and let us help you update it, if needed.
The bad news is that CA’s SB63 has passed through the legislature and is now ready for the governor’s signature. If this bill is made into law, companies with only 20 or more employees will now have to provide employees with up to 12 weeks of unpaid time off each year for family/medical purposes. Currently, similar laws (FMLA, CFRA) only affect companies with 50+ employees.
SB63 provides eligible employees protected time off for certain things, such as baby bonding and medical issues for themselves or family. Pregnant employees would have available both the time off provided in CA’s Pregnancy Disability Leave (up to 3 months) and the 12 weeks available through this bill because they cannot overlap. While you do not pay for any of this time off, the employee could receive supplemental pay from the state for about 3 months while on leave.
Aside from having employees off work for up to 12 weeks, companies will have additional administrative responsibilities in the form of various documents to be sent in a timely manner and tracking the time off related to these leaves. Remember, this is protected time off so hiring someone to fill their position will be on a temporary basis because the employee must be provided with their same or similar job when they return from the leave.
We’ll let you know if the governor signs or vetoes this bill. Even if the bill is vetoed, remember you can still allow employees unpaid time off as a personal leave of absence to accommodate baby bonding or medical leaves for your employees.