Personal Disability

“I just had another employee asking for a personal leave because she’s under a doctor’s care.  Do I have to give them the time off?”

Your HR Survival Tip

hospital patient

This can be a bit tricky and your options depend upon the number of employees you have. If you have fewer than 50 employees, this is a personal leave of absence and that will be this article’s focus. Just so you know, in companies of 50+ employees, the leave is likely to be protected under FMLA/CFRA.

As a first step, ask for a doctor’s note stating she will be unable to work from [start date] to [end date]. A doctor usually provides an initial note citing anywhere from 2 to 6 weeks. Make it clear to the employee that she will be expected back to work on [end date] or needs to provide another doctor’s note requesting an extension. Provide her the brochure about California’s state disability program and let her know it is up to her to file a claim.

If the employee has any sick time remaining, use the rest of it for work time missed. Companies frequently approve the initial leave request and, if you do, there is an assumption you will hold her job for her. However, we like to send out a certified letter explaining things related to the leave:

  • Doctor’s note – Cite the day she is expected to return to work or provide another note requesting an extension.
  • Health insurance – If the employee has coverage, explain how she would pay any co-pays and how long you’ll keep the coverage going.
  • Job protection – Explain you don’t believe there is job protection with this leave based on what you know.
  • Communication – How often do you want to hear from her, if the leave is more than a couple of weeks?

California’s EDD will send you a 2-sided form that’s printed in red ink. This is asking for basic information they will use to compare with the information on her claim. EDD will also notify her doctor of the claim and the doctor must provide EDD with the medical backup for the disability.

If an extension of the leave is requested, it’s time to talk with your HR consultant or attorney about your options. Even though there may not be job protection, you don’t want to just jump immediately toward termination. Every situation is different and you want to be able to fully justify any action you take.

Our Little Bundle!

We are halfway through 2019 so you only have 6 months remaining before all your employees must have completed sexual harassment prevention training. This is a new law that affects California employees in any company with more than 5 employees total.

Recorded On-Demand Training

We are now offering our on-demand recorded webinars separately or as a bundle. The advantage of on-demand training is that you and your employee can choose exactly when the training will occur. If you prefer using our materials in a group setting rather than individual training, just let us know and we can set that up for you.

  • Non-Supervisory 1-Hour — $12.95/person OR $125 for one week of unlimited use OR $350 for one month of unlimited use
  • Supervisory 2-Hour — $15.95/person OR $150 for one week of unlimited use OR $450 for one month of unlimited use
  • Bundled (provides access to both the Supervisory and Non-Supervisory programs): $165 for one week of unlimited use OR $500 for one month of unlimited use

Live Training Online

Live Webinars are available at scheduled days/times. However, we are happy to work with you to schedule training at your convenience. Our live webinars now have a combined training format. The non-supervisory portion will be presented during the first 60 minutes, then the non-supervisory personnel leave the webinar and the last 60 minutes will complete the supervisory training.

We are offering our training at a low price for two reasons. (1) Our training has no hired actors, no scripts, no staged settings… it’s just me (C.J. Westrick, HR Jungle’s founder) talking and using slides. (2) We know our clients are more concerned about the cost of complying with this law than they are about watching actors, so we wanted to provide cost-effective training.

All our training is available through Outpost.HRjungle.com and is fully compliant with California law. Just for fun, we had a few questions left over when we were done creating the programs. Those questions are now available in a free quiz through the Outpost… try it out and see how you do!

Sexual Harassment Prevention Training is NOW On-Demand!

Every company in California with 5 or more employees anywhere must provide sexual harassment prevention training to your California employees within 2019, then again every 2 years. 

On-demand webinars are a favorite with our clients because they allow you and your employee to decide when it’s most convenient to have the training. Whether you choose 6:00am or 4:30pm, it’s totally up to you. Since we’re not online with your employee during the training, they are welcome to email us with any questions they may have from the training.

The 1-hour non-supervisory version is (finally) ready… and we’ll have the 2-hour supervisory version soon!

  • This course is fully compliant with California law.
  • Your employees receives a Certificate of Completion immediately after the training is complete.
  • Your employees have continued access to their profile and certificate(s).
  • Pricing is VERY competitive
    • Only $12.95 for single use,
    • $150 for unlimited use for a week, or
    • $500 for unlimited use for a month.

The 2-Hour Supervisory version will be ready soon!

The Drawer Surprise

“I have an employee who went on a leave of absence and others needed to complete or do his work. However, based on what we’ve found, we don’t want him back! …”

Your HR Survival Tip

Once an employee is on a leave, a fairly high percentage of managers are surprised to learn the employee did not complete assignments, tasks, or projects. In a flash, your feelings toward that employee change and you dread their return.

The biggest question to ask yourself is how this happened. Why do you only discover the employee’s failures when they are off work? Many times when we hear the complaints from companies about what they’ve discovered, they are upset at the employee for not doing the job. However, let’s turn that question around and ask why it takes digging through an absent employee’s files to discover that employee isn’t doing the job?

Rather than blame the employee, maybe it’s time to look at your training, protocols, and processes. Do you have checks and balances in place to ensure required (and necessary) work is actually being completed? Have you ever randomly looked through a project folder and reviewed the work? Are you holding people accountable for their tasks and assignments? In other words, how are you making sure the work is being done and done to your standards?

It’s easy to throw blame around but it’s a company’s management team who creates the processes, trains the employees, and expects results. If you were teaching employees how to do a complicated dance move, you’d be able to witness the employee’s stumbling and understand they didn’t quite have it down yet. However, you hand them a complicated job to do, then nod and walk away. What if they are stumbling when you aren’t looking?

Many industries have random audits of one type or another. Protect your company by considering what types of audits (aka checks and balances) you might put into place. Not only will this ensure necessary work is being done but that it’s being completed with a consistency you need and want.

Unpaid Time Off

“I let my full-time employees have one week of paid vacation and two weeks of unpaid time off. Is there any reason I need to actually track that time off since it’s not paid?”

Your HR Survival Tip

There are times when a company can’t afford to pay for as much time off as employees may want. This may result in allowing employees to take additional time off unpaid but we usually find the company hasn’t bothered to track that unpaid time off. However, there are important reasons why you might want to allow unpaid time off but also want to track it in your payroll system.

Why might you want to allow unpaid time off? Perhaps that new employee had a vacation scheduled prior to accepting a job with you and can’t change it. Perhaps you don’t offer as much vacation as other companies and your employees prefer having the time off rather than the pay (it happens!). Perhaps you like to offer the flexibility.

Whatever the reason, we are seeing employees more concerned about having time off than getting paid for it. Of course, that’s assuming they earn enough so they aren’t living paycheck to paycheck.

Why do you want to track it in payroll? You want to avoid discriminatory practices, don’t you? If you aren’t tracking Sam’s unpaid time off, how do you know or justify that Sam isn’t receiving more benefits (holiday pay, paid time off, sick time, or insurance) than those employees actually working 40 hours per week? Is it fair that Sam gets the full benefit package even though he takes an extra 2 weeks off unpaid each quarter? Doesn’t that actually make him a part-time employee in comparison to the other employees? And is he even still eligible for benefits?

When you look at the numbers, you might notice where your lost productivity or wasted dollars are going. Then you need to ask yourself if this is working as it should. Don’t forget that someone else is picking up Sam’s work whenever he’s gone so those employees might be feeling a bit resentful and unappreciated, which could lead to turnover.

It’s easy to have your payroll provider set up an extra code for unpaid time off (UPTO) so you can enter any unpaid time each pay period. This will also let you run labor reports that are more accurate when forecasting future costs. It really boils down to being fair to all your employees and knowing your headcount projections are accurate.

Commission Tips

“I found a sales rep who wants to work for me for just commissions. I have nothing to worry about because he won’t cost me anything, right?”

Your HR Survival Tip

We all need a way to sell our products or services. However, there are several things to worry about when considering commissions.

First, let’s make sure this is someone who qualifies to be commission-only. Is this person spending at least 51% of his day “knocking on doors” to sell your service or product? You can’t count time spent in an office, time on the phone, time emailing, or time installing something… it must be time physically out there trying to make sales.

If he does qualify, then you need to agree on how he’s getting benefits offered to other employees. Yes, he still gets paid sick leave and any other benefits your company provides.

In California, it’s legally required to have a written commission plan. You need one that’s simple to understand but very clear about several things. It must include when/if an advance is provided, when a commission is actually earned, how it’s calculated, when it’s paid, and what happens to those commissions at termination. Keep in mind that a commission is a percentage of the sale.

In case you’re thinking you’ll just hire this guy as a 1099 contractor, think again. The only sales reps that might qualify as a contractor are those who have a business entity and are also selling products or services for other companies, in addition to yours. If you want to keep this sales rep all to yourself, he needs to be an employee.

Really good sales reps can be hard to find. Keep him happy by offering a commission that has unlimited potential… after all, he has to be making sales for you to be earning that big commission so you both win.

Retroactive Ruling

We have all seen or heard about the changes occurring due to the 2018 California Supreme Court decision on independent contractors. The Court’s ABC test resulted in most businesses turning those contractors into employees.

This ABC test was a blow to many but now it just got worse for some companies. A recent appeal by workers at Jan-Pro, a janitorial service, has resulted in the federal appellate court stating the Dynamex decision (which started the whole independent contractor legal battle) applies retroactively to cases decided before Dynamex as well as cases going forward. So even companies that changed the status of their contractors after the CA Supreme Court decision can’t assume they are safe.

In case you aren’t familiar with the ABC test, the Court stated a legitimate independent contractor must pass all three tests (A, B, and C):

  • A. The worker is free from control and direction by you in connection with the performance of the work, both under the contract for the performance of the work and in fact. — This means you are hiring expertise you don’t have in your business. The contractor should require no training or tools from you.
  • B. The worker performs work that is outside the usual course of the your business. — This test is often a killer because many contractors are performing services you provide to your clients. If what that contractor does is ultimately for the client instead of just for your company operations, they should be an employee.
  • C. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. — If the contractor has established a legitimate business, they will have other clients, marketing materials, a business name or entity, liability insurance, and all the other trappings you have for your own business. Just because they are an S corp doesn’t mean they are actually operating like a normal business and that’s where they could fail this test.

If you need help determining the legitimacy of your independent contractors, contact us or an employment law attorney. We would like to see this situation loosen up but it will take legislation, not hoping, to make that happen. Don’t try to wait it out because the law may not change enough to help you avoid expensive litigation.

No Match Letters

“I received a letter from the Social Security Administration stating I have several employees that don’t match what they have on file. What do I do with these?”

Your HR Survival Tip

We haven’t seen these letters in several years but the Social Security Administration (SSA) announced they were re-starting the program and companies are beginning to receive them. Basically the letter is telling you that an employee’s social security and name in your payroll system doesn’t match what the SSA has on file. This mismatch is the result of comparing the W2s issued in January.

This letter is not pointing fingers. The mismatch might be something as simple as a typo. Begin by reviewing your employee records and compare the information with what you have in your payroll system because the W2s were issued by your payroll processor. Make sure someone doesn’t have two last names that are showing up in your system as a middle name and last name. Check for typos against the employee’s social security card, if you have it.

Go to the website listed in the letter and follow instructions there to begin the formal process of managing this situation. Contact an employment law attorney or HR consultant for help in proceeding. There are several things you will need to do before you’ve resolved this.

While you don’t want to ignore this letter, you also don’t want to jump into action without assistance. Documentation throughout the process is important. Keep in mind that, if you approach your employees too soon with this issue, they may get scared or worried and quit. Complete what fact-finding you can before talking with the affected employees and then make sure you have a plan for how you will do it.

In the end, you’ll want to correct any mistakes. If needed, you should also review your I-9 compliance and data entry processes to limit any problems in the future. At this time, we don’t expect these letters to lead to an immigration audit but it’s better to fix things now and determine how to avoid receiving any of these letters in the future.

Who’s Signing?

“As the owner of my company, I’m the only person who can sign checks. Am I required to have a second signer?”

Your HR Survival Tip

Many small companies have only one person authorized to sign company checks. This may not be a problem most of the time. However, you need to think about alternatives.

Situations where a check must be signed pop up in business:

  • An employee turns in their resignation or is fired while you’re on vacation and their final paycheck must be delivered on their last day of work.
  • An employee walks out and, legally, you have only 72 hours to deliver that final paycheck.
  • Repairs or supplies are needed by your business and payment is needed.

If you have a trustworthy relative or friend who could hold a blank signed check in your absence, you’d at least have a way to ensure your business has money when or if needed. Some business owners keep a few blank signed checks in the company’s safe or with their accountant.

Decide what your “what if’s” might be and what the consequences would be if money weren’t immediately available because you’re on vacation or otherwise indisposed. Also decide on either who else might sign that check or who could hold one for you. As your company grows, you’ll realize you can’t make everything wait on you so prepare now.

Fined Things

It’s always good to have a sanity check and realize you’re not going to the trouble of being compliant for no reason. Here are a couple of recent cases.

Car Wash in Culver City CA

The Labor Commissioner’s Office issued over $2.36 million in wage theft citations… the largest ever against a car wash business. They also named the president and general manager of Centinela Car Wash, Inc. as jointly liable. What did they do wrong? Hopefully, none of this sounds familiar to you:

  • Failed to pay minimum wage (cited for $487,045);
  • Failed to provide, or properly pay for, required breaks to 64 workers ($258,394);
  • Told workers to be in the alley before work each day and they selected that day’s workers from the group without paying the others waiting/reporting time pay ($15,638);
  • Told workers to take extended lunch breaks without paying split shift premiums ($49,400);
  • Had employees working up to 10 hours a day without paying overtime ($146,129);
  • Charged illegal deductions for towels used at the car wash ($19,000);
  • Managers regularly altered timecards to reduce total hours worked ($293,000); and more.

Restaurant in San Jose CA

A PAGA complaint resulted in a Mexican restaurant having to pay 239 workers $1 million in unpaid wages, with an additional $100,000 in civil penalties. If you remember, a PAGA claim takes only one person filing on behalf of themselves and the other employees. This company had similar issues:

  • Failed to pay for overtime or split shifts, which resulted in the workers making less than minimum wage;
  • Failed to provided required meal breaks;
  • Often paid workers in cash; and
  • Did not keep accurate payroll records.

If you are doing any of these things, you are at risk. Give us a call to learn how to become compliant so you’re not a target.