Monday, November 30, 2015

eqHR Business Tips: Are Your Holiday Policies Offensive?

How to Try and Not Offend Anyone This Holiday Season

Wonder what happened to the "good old days"? With the lighting speed of social media peoples views and opinions change.

Starbucks is catching some flak recently in social media because their holiday cups for 2015 are plain red, without any Christmas related imagery, holiday decoration or seasonal message. Some Christians are offended and have started a hashtag campaign: #merrychristmasstarbucks.

In protest, some customers are giving “Merry Christmas” as the call name for their drink so that the holiday greeting will be written on their cup, and the barista will have to say “Merry Christmas” when their drink is ready.

This story got me thinking, how does an HR professional survive the holidays without offending some or all employees?

Religious beliefs are widely protected by both state and federal discrimination laws. HR professionals should remember that this also includes an employee’s wish not to be religious. Cal-Chamber recommends that employers keep their seasonal decorations religion-neutral.

Depending on the culture at your company, this may or may not be practical. If your company has a tradition of decorating their lobby every year with a large Christmas tree, you might want to consider including some Hanukkah or Kwanza decorations as well.

If you allow employees to deck their cubicle walls with boughs of holly, then you must also allow decorations reflecting other religious beliefs. Conversely, if you allow employees to decorate their cubicles year round but forbid decorations during the holiday season, this could be viewed as discrimination, so be careful.

Think about it too, if your company has an annual gift exchange, maybe don’t call it “Secret Santa,” but come up with some other neutral name. Don’t force employees to participate in any of the holiday festivities your company has planned, try to keep them as universal and optional as possible.

If you thought the only offensive thing during the holidays was how many pumpkin flavored products are for sale right now, then you may be in for a surprise. As the Starbucks situation shows, sometimes even trying to be as neutral and inclusive as possible offends some people, proving the old adage that “you can’t please all the people all the time.” 

As HR professionals, sometimes the best we can do is just make sure we are treating everyone fairly and consistently, and most importantly, legally.

Call us today if you need to assitance or require guidance for your employment policies / procedures .

This article was written by Lauren Sims, an eqHR Solutions Principal Consultant and may be contacted by calling eqHR Solutions.

eqHR Business Tips: Progressive Discipline - Why is it Important to be Flexible?

Most companies practice a progressive discipline policy. Progressive discipline specifies a range of responses to employee performance or conduct problems. The disciplinary actions range from minor to serious, depending on the nature and frequency of the issue.

Steps of Progressive Discipline:

  1. Verbal Counseling
  2. Written Counseling
  3. Administrative Leave
  4. Final Written Counseling
  5. Termination

Progressive discipline helps employees get back on track. Done correctly, progressive discipline:

  • Intervenes and corrects employee behavior early on
  • Enhances communication between managers and employees
  • Ensures consistency and fairness in dealing with employee issues, and
  • Establishes grounds for fair, legally defensible employment terminations when employees cannot or will not improve.

Flexibility is the Key
Many times I will advise employers not to include a progressive discipline policy in their Employee Handbooks. When it comes to discipline, every situation is different and it is important not to lock yourself in to a single response to a given situation.
For example, let’s say you are dealing with is an employee with an attendance problem. The Progressive Discipline steps listed above are a fair and consistent way address and correct the attendance issue.

However, if the issue is more severe, such as theft or a serious performance problem, you want the freedom to be able to skip steps, perhaps going straight to Written Counseling or Final Written Counseling, or in an egregious situation, directly to termination. In those circumstances the last thing you want is an employee filing a claim against your company because you did not follow the exact discipline steps laid out in your handbook.

Another good example of the importance of flexibility in your progressive discipline practices is step 3: Administrative Leave. You most likely will skip this step in most cases, however it should be utilized in situations when there is a reason the employee needs to be removed from the work environment such as: harassment investigations, suspicion of theft, potential threat of violence or other disruption, or if they can’t perform their duties until an investigation is complete.

Progressive Discipline is an important tool for employers when they need to discipline their employees. It allows for due process and documents fair and consistent treatment of employees. It is important to remember, however, that all situations are different and employers must allow themselves some room to ensure that the punishment does indeed fit the crime.

Call us today if you need to assitance or require guidance for your employment policies / procedures .

This article was written by Lauren Sims, an eqHR Solutions Principal Consultant and may be contacted by calling eqHR Solutions.

eqHR Business Tips: 228 million dollar Settlement - Misclassified Employees - Are Yours?

Recently a $228 million settlement in a class action lawsuit filed against FedEx alleging that drivers were misclassified as independent contractors was preliminarily approved by the courts.

This is yet another example from the headlines of the importance of classifying your employees correctly.

You may feel that your company is too small to worry about huge class action lawsuits, but there are still very real risks and financial penalties for employers who misclassify their employees. According to the IRS, misclassifying employees as independent contractors and failing to pay Social Security and Medicare Tax as well as withhold and pay federal income tax can subject an employer to back taxes of as much as 41.5% of the contractors’ wages. These penalties can go back for three years. IRS will add fines on top of that ranging from $50-25% of the total tax liability depending on the situation.

Compounding the problem is if the misclassified worker should have also been eligible for overtime during the time they were misclassified. The employer could then be subject to further fines and paying back overtime wages.

What is an independent contractor?

In general, an independent contractor controls what will be done and how it will be done, while the employer can only control the result of the work. For more information, see the EDD worksheet for determining if a worker is an employee or an independent contractor:
Things to consider:
  • What is the degree of control over work and who exercises that control?
  • What type of skill is required for work?
  • Is the worker an integral part of the business?
  • Does the worker provide their own equipment, supplies and tools?
  • Can the worker be discharged at any time?
  • Does the worker set their own schedule for work?
  • Is the work temporary or permanent?
As the saying goes: “if it looks like a duck, quacks like a duck, then it’s a duck.” In other words if the worker looks like an employee, has a desk, an office extension, business cards, etc., then chances are they’re an employee.

Call us today if you need to assitance or require guidance for employee classifiation

This article was written by Lauren Sims, an eqHR Solutions Principal Consultant and may be contacted by calling eqHR Solutions.

Monday, November 16, 2015

eqHR Business Tips: Understanding Pregnancy Leave in California

An employee tells you she is pregnant and due in a few months. You ask youself, how does Pregnancy Disability Leave work? How do I explain and keep track of the time she can take off?

Navigating pregnancy leave can be confusing for employers. It is important to track and document the leave entitlement for the Pregnancy Disability Leave (PDL) and ensure that you are providing the correct information.  If do need assistance, please call our offices (855-461-8808). 

Remember, you must notify the employee the designation of her leave. For example, you
would say that the leave for 12 weeks has been designated as PDL. If they are taking additional CFRA leave, you must also designate that leave as well.

Keep track of the leave and how much time counts toward each type (i.e. PDL, FMLA or CFRA)

The three primary regulations that regulate pregnancy leaves are the Pregnancy Disability Leave (PDL),the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA). 
  • In California, employers with 5 employees or more are required to provide up to 4 months or 17 -/3 weeks of job-protected time off. Here are some important things to know about Pregnancy Disability Leave (PDL):
  • All employees are eligible, full-time and part-time, regardless of how long they have been with your company.
  • Full-time employees are eligible for up to 693 hours of leave (17-1/3 multiplied by 40 hours), part-time employees are pro-rated by the number of hours they work per week (i.e. someone working 20 hours per week would be eligible for 346.5 hours or 17-1/3 multiplied by 20 hours).
  • California Family Rights Act (CFRA) leave does not run concurrently with PDL. Therefore, an employee can take up to an additional 12 weeks of protected leave under CFRA (if she is eligible for CFRA), after her PDL has ended.
  • The 12 week leave entitlement under Family Medical Leave Act (FMLA) does run concurrently with PDL and should be designated as such if the employee is eligible for FMLA when the leave is requested and approved.
  • PDL does not have to be taken all at once, for example, if your employee takes 2 weeks off at the beginning of the pregnancy due to severe morning sickness, the 2 weeks count toward her 17-1/3 week entitlement. She then has 15-1/3 weeks remaining of her PDL entitlement for this pregnancy. Employees may take PDL in any increment: hours, days, weeks, or months.
  • The employee’s health care benefits must stay in effect the same as they were prior to the leave. The employer can collect the employee portion of the premium amount from the employee during the leave.
  • PDL is unpaid, however, the employer can require the employee to use any accrued and unused sick time while on leave. The employer cannot require her to use vacation time or personal time off. She may also be eligible for State Disability Insurance (SDI) while on PDL.
  • The employer can and should require that the employee provide medical certification that she is disabled due to pregnancy. The certification should include the date that she became disabled, and the date the disability will end.
  • When the employee returns from PDL, she must be reinstated to the same position she had prior to her leave. The only exceptions are if she would have been laid off for legitimate business reasons even if she had not taken the leave. Also, if the employer cannot reinstate the employee to the same position, for legitimate business reasons, she is entitled to return to a comparable position.
  • Employees may also request temporary transfers or duty restrictions as pregnancy related accommodations. Accommodation requests should follow your usual procedure for reasonable accommodations under the Americans with Disabilties Act (ADA).

To manage your employee’s leave, make sure you do the following:

  1. Have the employee provide you written notice of her need to take leave including the projected dates she will need to be off work.
  2. Provide the employee a notice of their rights. Sample forms - click DFEH
  • Ask for medical certification, sample form click here:

Call us today if you need to assitance or require guidance for a specfic employment leave situation.

This article was written by Lauren Sims, an eqHR Solutions Principal Consultant and may be contacted by calling eqHR Solutions.

Sunday, November 15, 2015

eqHR HR Business Tips: Handling an Intoxicated Employee

A client recently called and asked how to handle an employee they suspected of a drinking problem.

Several employees reported smelling alcohol on John's breath. Plus, we’ve noticed that John's attendance and punctuality has gotten worse. What is the best way to handle this situation?

Hopefully you have a drug and alcohol policy in your Handbook at your workplace. This is helpful because it gives you a guide as to what is acceptable and what isn’t acceptable and can help guide you through this situation. However, even if you don’t have a written policy in effect, the strategies to deal with this situation remain the same.

If someone comes to wor,k apparently under the influence of alcohol or drugs, you should send them home immediately. Have a co-worker drive them home, or call them a cab. This is true in any situation, but particularly critical where there is a safety issue, for example they use machinery or drive for their positions.

When the employee returns, follow your normal disciplinary procedures and either present them with a verbal or written counseling. Make it clear that coming to work intoxicated is unacceptable, and further occurrences may result in further action including termination or employment.

In some cases, an employer may suspect that an employee’s issues with chemical dependency are impacting his or her performance in the workplace, even though the employee is not observed at work in an obviously intoxicated condition. In those situations, employers should always remember to focus on job performance issues rather than the suspected chemical dependency. Document and make clear what expectations aren’t being met and provide a roadmap and timeline for improvement.

What if your employee admits their problem and asks for help? Depending on your company size, the employee may have certain rights under the Family Medical Leave Act (FMLA) and the American’s with Disability Act (ADA) to seek treatment for their condition. You may also want to review your medical insurance coverage to see what it covers for substance abuse treatment, or refer them to your Employee Assistance Plan (EAP) if you have one.

Finally, a word about drug testing. If you believe the employee has a problem with alcohol or drugs and you want to have them take a drug test to be sure, tread very carefully. Drug testing current employees is a highly litigated area, and I would advise consulting legal counsel before going any further.

Employers often want to help their employees when they suspect a potential alcohol or drug problem. However, sometimes their compassion can lead them down a long path of poor performance and frustration. The best strategy is to try and remain focused on job performance, and avoid getting embroiled in what could become a drawn out and drama filled problem.

Call us today if you need to update your employee handbook or require guidance for a specfic employment situation.

This article was written by Lauren Sims, an eqHR Solutions Principal Consultant and may be contacted by calling eqHR Solutions.

Lionsgate Entertainment Selects eqHR Soloutions for Sexual Harassment & Bully Prevention Training

LionsgateEntertainment, a leading global entertainment company that brought us The Hunger Games and hundreds of other movies and television shows, selected eqHR Solutions to provide their required sexual harassment and bully prevention training (AB1825 & AB2053) for their executive and supervisors.

The training/presentation was held in October in the movie screening auditorium at their Santa Monica offices.  Our trainers, June Jeong and Lauren Sims commented that our presentaion and video vinettes looked fantastic on the "big screen" where major motion pictures have been screened by the Lionsgate executives 

Crane Co. Retains eqHR Soluitons for a Recruitmenmt Project

Crane Co. is a diversified, international manufacturer of highly engineered industrial products with a substantial presence in a number of focused niche markets. The Crane Co Long Beach, CA division had an immediate need to recruit/interview/hire for multiple positions and retained eqHR Solutions for this critical project.

The assignment is scheduled to last three months or until the open positions have been filled. Many of the open positions are for senior engineers.  We assigned a senior consultant, Patricia Kim, for this project.  Ms. Kim will work up both on and off site. eqHR was selected based on recruitment experience and knowledge of the Los Angeles DMA.