Friday, September 22, 2017

Maintaining Employee Personnel Files in California



Employers are required by law in California to keep personnel files for every employee.


Employees may inspect those personnel file/records at “reasonable times and intervals.” To facilitate the, an employer must do the following:

  1. Maintain a copy of each employee’s personnel records for no less than 3 years.
  2. Make a current employee’s personnel records available, and if requested by the employee or representative, provide a copy at the place where the employee reports to work or at another location agreeable to the employer and the requester.
  3. Make a former employee’s personnel records available, and if requested by the employee or representative, provide a copy at the location where the employer stores the records unless the parties mutually agree in writing to a different location.

The Division of Labor Standards Enforcement (DLSE) has stated that “reasonable times” is during the regular business hours of the office where personnel records are maintained.  The DLSE has stated that “reasonable intervals” is once every year, unless there is reasonable cause to believe that the file has been altered in a manner that might adversely affect the interests of the employee, or the file contains information that is pertinent to an ongoing investigation affecting the employee, in which case more frequent inspections would be considered “reasonable”.

The employer must make the employee’s personnel records available within 30 calendar days from the date the employer receives a written request for inspection.

Employers do not have to provide everything in the personnel file for inspection by the employee or the former employee. By law, the right to inspect does not apply to:
  1. Records relating to the investigation of a possible criminal offense.
  2. Letters of reference.
  3. Ratings, reports, or records that were:
    1. Obtained prior to employment
    2. Prepared by identifiable examination committee members

Records that are generally considered to be "personnel records" are those that are used or have been used to determine an employee's qualifications for promotion, additional compensation, or disciplinary action, including termination. The following are some examples of "personnel records" (this list is not all-inclusive):

  1. Application for employment
  2. Payroll authorization form
  3. Notices of commendation, warning, discipline, and/or termination
  4. Notices of layoff, leave of absence, and vacation
  5. Notices of wage attachment or garnishment
  6. Education and training notices and records
  7. Performance appraisals/reviews
  8. Attendance records

Employers are also required to allow the employee to have a copy of their personnel record. Employers can charge the employee to make the copy an amount not to exceed the actual cost of reproduction, not later than 30 calendar days from the date the employer receives the request.  A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses.


Employers can require employees to inspect the file on their own free time. However, if required the employee to travel to the location where the records are stored, the inspection must be during a time when the employee is scheduled to work and the employee must be compensated for that time at their regular rate of pay.

The penalty for failing to comply with the regulations regarding the employee’s right to inspect their file is $750. An employee may also bring an action for injunctive relief to ensure compliance and recover costs and reasonable attorney’s fees.

Employers should maintain all personnel files in a consistent and legal matter. All unnecessary items should be removed. The official personnel file should contain only items such as those listed above. When an employer receives a written request from an employee to inspect their file, review the file first to ensure that all extraneous items are removed.


Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.
Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.
eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Employers Considerations During Natural Disasters


This is a good time for HR professionals and business owners to be reminded of employees compensation and leaves when natural disasters strike.


Recently we have all witnessed the devastating impact of hurricanes Harvey and Irma, and perhaps more to come. Whether it be from afar, or it directly affects our employees, we want to do whatever we can to help. Many businesses have been damaged or destroyed, while others have closed temporarily for safety and security reasons. These businesses may remain closed, or operate with limited hours, for days, weeks, or possibly months. When such closures occur, we must consider business needs and what our obligations are.


The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay non-exempt employees if the employer is unable to provide work to those employees due to a natural disaster. However, in California, you are required to compensate non-exempt employees under call-in or reporting pay laws, especially if the employees were not advised that they should not report to work and were denied work upon arrival at the workplace. You are also required to pay non-exempt employees for waiting-time. For example, if the power goes out and employees are required to wait on premise until the power comes back on.

For exempt employees, an employer will be required to pay the employee's full salary if the worksite is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use paid time off or accrued vacation time. If an exempt employee can not get to work because of a disaster, this is considered an absence for personal reasons and the employer can place the employee on unpaid leave or require the employee to use a vacation day for full days.

A deduction from salary for less than a full day's absence is not permitted, although the employer may make a partial daytime deduction from the employee's leave bank (if there is insufficient time in the leave bank, no deduction from salary can be made).

There is an exception to the Worker Adjustment and Retraining Notification Act (WARN) Act for natural disasters. If a plant or operating location is closed or there is a layoff as a direct result of a natural disaster, the employer is not required to give the 60 days notice required under the WARN Act. Nonetheless, the employer is required to give as much notice as is practicable. If an employer gives less than 60 days' notice, the employer must prove that the conditions for the exception have been met.

If your company is subject to the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), employees affected by a natural disaster are entitled to leave under FMLA or CFRA for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave under the FMLA and CFRA.

For those employees who are also part of an emergency services organization (such as the National Guard or a Reserve unit), the USERRA may apply. USERRA prohibits discharging, denying initial employment, denying promotion or denying any benefit of employment because of a person's membership, performance of service or obligation to perform service in uniformed service.


Don’t forget the Americans with Disabilities Act (ADA). Under the ADA, employees who are physically or emotionally injured as the result of a catastrophe may be entitled to reasonable accommodation by the employer as long as it would not place undue hardship on the operation of the employer's business.

Also, consider safety issues. Employers are responsible to protect employees from unreasonable danger in the workplace, which includes an imminent "natural phenomenon" that will threaten employee safety and health. Hurricanes and other disasters may present obvious safety concerns that employers need to consider when asking employees to come into work during adverse weather, including vehicle accidents, slips and falls, flying objects, electrical hazards from downed power lines, exhaustion from working extended shifts and dehydration.

During what can be a difficult time for your employees, employers should do their best to remain sensitive to the physical and emotional needs of their employees. Communication is key as well as fostering a “we’re in this together” spirit. Companies may sponsor donation efforts for which they will match funds collected, or hold food or clothing drives. Some companies may also encourage employees to volunteer for relief effort by providing paid time off to do so. Employers who maintain leave banks may also allow employees to donate leave to other employees who need time off to deal with disaster issues or who are volunteering for relief efforts.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.
Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.
eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Best Practices for Paternity Leave in California



Recently the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Estée Lauder for giving new mothers more leave for caregiving and child-bonding than new fathers.

Paternity leave benefits are much less common in the United States than maternity leave benefits. However, California is one of the few states in the country that provides fathers with paid time off via state law.

In California, paternity leave benefits are a part of the state’s Paid Family Leave (PFL) insurance program. The law provides disability compensation for men and women who take time off from work to care for newborn babies or injured or sick family members.


Anyone who pays into the California State Disability Insurance through payroll deductions is entitled to use PFL benefits at any time for a variety of situations. Parents are only eligible to receive PFL benefits within one year of a new child’s birth, adoption, or foster care placement. In addition, parents must also provide proof of relationship to receive approval for PFL benefits. If eligible, PFL will pay for up to 6 weeks while a new parent is on leave.
However, employers should not confuse PFL with a leave entitlement for new fathers. Employers who are subject to the Family Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA) must grant leave to new parents. FMLA and CFRA leave is unpaid, and gives parents the opportunity to take 12 weeks to bond with their new child.

Often we are asked by employers who are not subject to FMLA or CFRA if they have to provide paternity leave for their employees. Remember PFL does not entitle an employee to leave, it just provides pay if a leave is granted. Even still, I recommend employers grant personal leave to new fathers. As is shown by the EEOC case against Estee Lauder, not granting leave can appear discriminatory, aside from the general goodwill granting such a leave would foster.

PFL applies to all California employers, regardless of the size of their workforce. In addition, PFL does not provide an independent job restoration or reinstatement right for an employee who leaves work for a reason that qualifies under the PFL program, unless the employee is entitled to job protection under the employer's policy or another law. Another thing to consider in California is the Paid Sick Leave Program. Depending on which city the employee works, they are entitled to use paid sick leave benefits to care for a child. I recommend that when considering granting paternity leave, take their accrued paid sick leave balance into account.


Employers, especially smaller companies not subject to FMLA and CFRA are usually reluctant to provide paternity leave to new fathers. As I said above, it is a good practice to do so, but if it is a hardship the employer can get creative with how they grant the leave.

The employer can suggest an intermittent leave where the new father takes two days off a week, or maybe spreading the leave out where they take 2 weeks right after the birth and then a few more weeks later in the year. As with most things, communication is key and appreciated during this exciting time for your employees.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.
Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.
eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Sunday, August 27, 2017

How does Your Company Process Resignation Letters


Employers Best Practices: Resignation Letters

Often when we are performing an HR Audits, we discover that several employers do not require the employee to give them notice of their resignation in writing. We always recommend to employers to not just accept a verbal resignation but to require the employee to give them notice in writing.

The reasons you want the employee's resignation in writing are:

  • Provides documentation if later the employee files a claim against the company
  • Provides documentation if the employee tries to file for unemployment

Now, after a recent case in California, we can add another reason to the list:
  • In case the employee tries to rescind their resignation, and the employer does allow them to rescind.
The case involved an employee who sued their employer when they would not allow the employee to withdraw their resignation. The employee claimed the employer, by failing to all the employee to withdraw their resignation was discriminating against her because of a disability.

The court ruled that because the employer had already accepted the employee’s resignation, the employer was under no obligation to allow the employee to withdraw her resignation, and the employer’s decision did not amount to an adverse employment action.
This is an important reason for all HR departments to add to their best practices to not only require the employee to submit their resignation in writing but also to accept the resignation in writing. Doing this simple step can avoid issues down the road.

Lauren Sims is the author and the Director of Human Resources Consulting for eqHR Solutions.
Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.
eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

What to Do When an Employee Says the Word “Union”



Usually, managers have distrusted unions and fought unionization. Even hearing the word “union” can strike fear into the hearts of any Human Resources professional. The fear comes from the dread of collective bargaining and contract negotiations making their organizations less flexible and less efficient as well as increasing the cost of labor.

The segment of the workforce most likely to unionize these days includes lower-skilled workers making less pay. Typically examples of employees susceptible to unionization include maintenance, clerical and call-center workers.

The first best defense to preventing unionization in your workplace is to create a culture in your organization where workers will not want to unionize. Sounds simple, but not always easy to do. Union membership costs time and money and workers are unlikely to unionize unless they are very disgruntled.


If a company cannot afford to provide adequate pay and benefits to keep workers happy, they should consider increasing job satisfaction by giving them more flexibility and involvement in job duties and procedures. Companies should try to emphasize communication, involvement, respect, and rewards.

Unionization efforts tend to arise when management shows that it doesn’t care about employees. Managers need to regularly engage employees and hear their concerns.
If a unionization effort arises in your company, remember it a symptom. Management should take time to learn why employees believe that unionization is an option for them. Once management understands the issues, it can look for ways to address the concerns.

Companies should be very careful in how they react to an effort to unionize. It is a good idea to consult legal counsel before taking any action. It’s easy to violate labor regulations. Employers should make no comments or efforts that appear threatening to the employee for taking this action.  Employers should also refrain from threatening to shut down operations or asking individuals whether they are pro or anti-union.


While it can be frightening, management should continue to communicate with employees during this process. Active listening and positive response before a union vote may lead to rejection of the union and lay the groundwork for a better long-term relationship between management and workers.

Lauren Sims is the author and the Director of Human Resources Consulting for eqHR Solutions.
Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.
eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

CA Employees Rest Period - Is Your Company Complying?

Rest Periods - Review Your Practices



Several industries, such as security firms, car dealerships, and medical fields have argued that they are not able to relieve their employees of all duties during rest breaks. Their argument has been that due to the nature of work, for example, a security guard or an emergency medical technician must remain on-call during rest breaks even if they do not actually do work during this time.


At the end of 2016, the California Supreme Court ruled that the employer must relieve employees of all duties during rest breaks and cannot require them to be on-call. Employers must:


      Provide employees with an uninterrupted break;
      Relieve employees of all duties; and
      Relinquish any control over how employees spend their break time.


As a reminder, non-exempt employees must be provided rest periods, as close to the middle of each work period as is practical.  The rest period is based on the total hours worked daily at the rate of ten (10) minutes per four (4) hours worked. This chart illustrates how rest periods should be calculated:

Number   Hours Worked
Number - Ten Minute Periods
3 ½ – 6
1
6 – 10
2
10 – 14
3
14 – 18
4
18 – 22
5
22 – 24
6
Rest periods may not be added to meal periods to extend the time, nor used to make up for tardiness or leaving work early.


The court also ruled recently that commission only employees must be paid separately for their rest breaks. If you have commissioned employees, ensure that you pay those employees separately for their rest breaks and pay at least the minimum wage for that time. Don’t include the pay for rest breaks in employee’s advance against commissions.


Employers who do not permit employees to take a rest break owe each employee one hour of wages as a penalty for every day the rest period was missed.



Since rest breaks are paid and no off the clock like meal breaks, most employers do not require employees to clock in and out for breaks. However, employers should review their policies and procedures to ensure that employees are being provided uninterrupted rest breaks. Employers may also want to consider having their employees sign attestations every pay period that they were provided all their uninterrupted rest periods.


Lauren Sims is the author and the Director of Human Resources Consulting for eqHR Solutions.
Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.
eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Saturday, July 29, 2017

What it could Cost Your Company for a Minimum Wage Claim

Carl's Jr. Fined $1.45 million for Minimum Wage Violation


The City of Los Angeles has fined the restaurant chain Carl’s Jr.  $1.45 million in minimum wage violations and related penalties. That number covers more than three dozen workers at franchise outlets across the city over a six-month period, plus fines.

The issue stems from what Tennessee-based CKE Restaurant Holdings (the parent company of Carl’s Jr.) calls a “payroll error,” though they argue the amount of money missing from 37 employees’ paychecks is well below the number the city is fining them. Reps for Carl’s Jr. claim to have paid out $5,400 to give the workers their missing funds after correcting a six-month issue where workers were making $10.00 or $10.25, instead of the city-mandated minimum wage of $10.50.

More than $900,000 of the $1.45 million is purely penalties meant to go to the workers in question, while more than a half-million in further fines would be collected by the city directly.

As minimum wage in LA just went up again on July 1, 2017, employers should take a moment to review their pay rates and ensure they are following all local ordinances.
CITY
MINIMUM WAGE AS OF JULY 1 2017
California State
$10.50 (26 or more employees)
$10.00 (25 or fewer)
Berkeley
$12.53
El Cerrito
$12.25
Emeryville
$14.82( 56 or more employees)
$13.00 (55 or fewer)
Los Angeles
$12.00 (26 or more employees)
$10.50 (25 or fewer)
Pasadena
$12.00
Mountain View
$10.30
Oakland
$12.25
Palo Alto
$11.00
Richmond
$12.30
San Diego
$11.50
San Jose
$10.30
Santa Clara
$11.00
San Francisco
$14.00
Santa Monica
$12.00 (26 or more employees)
$10.50 (25 or fewer).
Sunnyvale
$13.00
Lauren Sims is the author and the Director of Human Resources Consulting for eqHR Solutions.
Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.
eqHR Solutions offers professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.