Understanding the Legalization of Marijuana and the California Workplace

The recent election and passing of Proposition 64 in California which legalizes recreational use of marijuana by adults has many employers wondering how this affects their current policies and procedures regarding drug use and the maintaining of a drug-free workplace.

It is important for employers to know that Proposition may legalize adult recreational use of marijuana. However, it does still allow employers to enact and enforce workplace policies about drug use. Therefore, employer policies related to drug possession, use and impairment as well as testing do not need to be changed with the legalization of marijuana use in California.

Because marijuana use is illegal under federal law, employers may continue to prohibit the use, possession, and impairment at work, and may continue to test for use when appropriate.

If you are an employer who contracts with the government, you are required to maintain a drug-free workplace and certify that the business is drug-free. These employers must continue to comply with these drug-free workplace laws.

Pre-employment drug testing is also still legal and employers may conduct pre-employment drug testing of all applicants before hire and deny employment if the drug test comes back positive, even if the applicant was legally using medical marijuana.

Employers should take the opportunity to remind their employees of their company’s policies and procedures regarding maintaining a drug-free workplace. Employers should explicitly state that despite the passing of Proposition 64, marijuana is still prohibited.

Employees should also be reminded that impairment on the job is not tolerated, even if the impairment was due to using marijuana at home before coming to work. When reviewing existing policies or creating new ones, make sure your policy clearly states the company’s position on drugs in the workplace, including marijuana. Also, if you conduct pre-employment drug testing, inform all applicants of this policy and clarify that they will also be tested for marijuana use.

In creating or reviewing your drug-free workplace policy, make sure it bans the use, possession or sale of drugs in the workplace or on company property. It should also prohibit employees from being under the influence of an illegal or controlled substance while on the job, including alcohol and marijuana.

Supervisors should be trained on the policy and how to identify employees who may be under the influence and how to handle the situation. As with any company policy, it is important to follow the policy consistently and not allow any exceptions to the policy.

Lauren Sims is the author and a Principal HR Consultant with eqHR Solutions.

Whenever you require Human Resources or Payroll advice or help to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.

It's time to Consider Implementing a PTO Program

We often recommend that employers switch from a traditional leave program (sick time and vacation) to a paid-time-off (PTO) system because of the numerous advantages for employers and employees alike.

Things to Consider When Implementing a PTO Plan

1. Diagnosis, care, or treatment of an existing health condition, or preventive care for, an employee or an employee’s family member;

1. For an employee who is a victim of domestic violence, sexual assault, or stalking. 

PTO is a bank of days from which employees can draw for vacation, sick leave, doctors’ appointments and personal days off from work. In contrast, traditional leave programs allocate a specific number of days for vacation and for sick time.

Moving to a PTO system has many advantages, including: reducing unscheduled absences, and the costs and productivity losses associated with them; making an employer more attractive to current and potential employees, especially those who value discretionary time off; reducing administrative and compliance costs, as PTO use no longer requires validation in most instances; and empowering employees to make their own decisions regarding the amount of vacation and personal time spent away from work.

In California, because of the recent enactment of sick leave laws, employers have shied away from implementing PTO plans. The state of California has determined that PTO plans fulfill the requirement to provide paid sick leave as long as the PTO plan provides the minimum amount of paid sick leave required by the law. Employers must also allow employees to use their PTO for the same reasons outlined for the use of paid sick leave.

PTO encourages employees to manage their time off more and to use more vacation time and rely less on the occasional sick day as a means of staying out of the office.

Ensure there are clear procedures for employees to give a specific amount of notice (e.g., three days) before using a PTO day unless the employee is sick or has an emergency.

Employers should also define the types of absences an employer includes in the PTO bank. As we stated above, employees must be allowed to use PTO for the same reasons they can use paid sick leave under the California law. These reasons include:

State explicitly how many PTO days will be available to employees based on job level, seniority or other factors and if there is a cap on PTO accrual.

Another thing to consider is whether employees are allowed to carry over unused days from one year to the next, and if not, whether the account must be paid out by year’s end, and if so, what the formula is for calculating unused PTO days.

In California, employees leaving the company must receive the payout value of their PTO. Employers should consider this when designing their program and determining the cap on accrual.

Developing and implementing a PTO program that is clearly defined in all of its aspects can be mutually beneficial to the employer and employees and can improve morale and productivity.

Lauren Sims is the author and a Principal HR Consultant with eqHR Solutions.

Whenever you require Human Resources or Payroll advice or help to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.

Employers Tips to Manage Overtime in California

When do you pay Overtime?

In California, a nonexempt employee is entitled to 1.5 times their regular rate of pay for all the hours worked over 8 in a day or 40 in a week. If they work more than 12 hours in a day, they must be paid two times their regular rate of pay for all time worked over 12 hours.

On the seventh consecutive day of work in the workweek, employees must be paid 1.5 times their regular rate of pay for the first eight hours worked and two times their regular rate of pay after eight hours of work.

Can you Require Prior Approval for Overtime?

Employers should draft a policy that requiring employees to obtain approval before working overtime or face disciplinary measures. Employers are always concerned that their bottom line can be impacted or employees may learn to “game” the system to earn a little extra money.

Employees who work overtime without prior approval must be paid the overtime worked. California law requires employers to pay employees for all the hours they worked. However, employers should follow their disciplinary policy consistently when this occurs. You may choose to use progressive discipline in this instance, a verbal warning at first and the move forward with more severe consequences from there.

If employees complain that they can’t get their work done without putting in overtime, examine workload issues and time management. Do quotas need to be adjusted? Is additional staffing needed?

Documenting Hours Worked

All employers should have a system in place to track and document hours worked by their non-exempt employees. For many this may be electronic and tied to their payroll system, for others, it may involve the employee completing paper timesheets. It doesn’t matter how the hours are documented, just ensure that they are. Documenting time worked not only ensures proper payment of overtime but also information to plan staffing and budgeting. This means the consistent review of employee time, so you know how much employees are working and ensures that you are aware if employees are working overtime without authorization.

Can You Require Mandatory Overtime?

If your organization needs to require employees to work overtime either intermittently or on an ongoing basis, ensure your policy is clear and your practice of implementing mandatory overtime is done so consistently.

As an at-will employer, you have the right to require mandatory overtime as needed; just be prepared to address reasonable accommodation or other employee availability issues in a legally compliant and consistent manner.

Consider making mandatory overtime part of the employees’ essential functions in job descriptions. This will assist in evaluating reasonable accommodation and performance issues. In addition, you are making it clear that the job for which the employee is hired requires overtime and that working overtime is expected of the employee.

Best Employer Practices - Overtime Rules

Dos:

• Always pay employees for all hours worked, regardless if they acquired pre-authorization
• Create a policy regarding overtime and the requirements for pre-authorization
• Discipline employees who violate the overtime policy in a timely and consistent manner
• Document all hours worked, including overtime
• Always follow all state and federal laws regarding overtime!

If you haven’t already, ensure that all your exempt employees are making at least the minimum annual salary requirement in California of $45,760

Don’ts:

• Don’t allow employees to work off the clock
• Don’t encourage employees to work without pay
• Don’t offer “comp” time in lieu of paying overtime

Tracking and paying overtime correctly is an important employer responsibility. As more employees potentially become eligible for overtime pay, employers must ensure they have correct and compliant overtime policies and procedures in place to protect them from potential problems.

Lauren Sims is the author and a Principal HR Consultant with eqHR Solutions.

Whenever you require Human Resources or Payroll advice or help to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.

FLSA Requirements to Accommodate New Mothers

Are you doing enough to accommodate your new mothers?

California law requires employers to reasonably accommodate employees who want to express breast milk at work. The general definition of expressing breast milk is to pump or otherwise remove breast milk from one’s body.

Which employers are required to provide this accommodation?

Federally, all employers covered by the FLSA must conform. You may be exempt from the law if you employ fewer than 50 people and can show that compliance with the regulation would create an undue hardship.

In California, however, the Fair Employment and Housing Act (FEHA) protects from discrimination, harassment and retaliation on the basis of “sex,” which specifically includes “breastfeeding and medical conditions related to breastfeeding.” Therefore lactation is protected by FEHA’s laws against pregnancy discrimination.

Employees may request a reasonable accommodation of their need to express milk, the burden is on the employers to evaluate the request.

What are you required to do?

• Provide a reasonable amount of break time for employees to express breast milk
• Nonexempt (hourly) employees can be required to use the paid, break time you already provide. If the employee needs additional time beyond the normal paid rest break for expressing milk, the time must be provided, but it may be unpaid.
• Exempt employees may take reasonable breaks to express milk as part of their regular workday.
• If they choose to, employees may use their lunch break, but you are still required to provide reasonable break time if necessary.
• Provide the use of a private place (other than a toilet stall) that’s in close proximity to the employee’s work area for the employee to use to express breast milk. The employee’s normal work area can (i.e. private office)be used if it allows the employee to express milk in private.

What can happen if you don’t comply?

The Labor Commissioner may issue a citation to employers that violate this law, subjecting them to a civil penalty of $100 for each violation.

How Private is Private?

Employers must make reasonable efforts to provide a room, other than a toilet stall, in close proximity to the employee’s work space.

It can be an employee’s office or a separate room. To ensure privacy, a locking door with an appropriate sign, such as “Private. Please Do Not Enter Without Prior Authorization,” will ensure only those who have a legitimate need to be in the space can enter.

Because transgender employees are also protected, do not use gender-specific terms to address privacy

Best Practices for New Mothers

• Provide reasonable accommodation to employees who request it for lactation purposes.
• Ensure your workplace has an appropriate place to express breast milk if an employee requests accommodation.
• Do not discriminate on the basis of gender when evaluating a request for lactation accommodation.
• Update policies to ensure compliance with applicable laws.
• Never deny a request for the need to express breast milk/lactation without first consulting legal counsel. There are gray areas of compliance that should be explored.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions. Whenever you require Human Resources or Payroll advice, or help navigating the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.

Why You Need an Up-to-Date Employee Handbook

Many employers are intimidated by the task of creating and maintaining an Employee Handbook. A well-written employee handbook is an important document and necessary for all businesses, from 2 employees to 20,000.

What is the purpose of your Employee Handbook?

• Introduce employees to the mission, history and values of the organization;
• Provide guidance on personnel matters, such as leaves of absences and time off policies;
• Sets performance and conduct expectations;
• Communicates company policies on harassment and discrimination in the workplace.

Employers must follow their employee handbooks consistently. A handbook is a legal document that can protect employers, from liability in some instances.

What Should Your Handbook Include?

While not comprehensive, here is a list of important things to include in your Handbook:

• At- Will statement- provide a clear statement that all employment is at-will and the Handbook does not make any promise of continued employment;
• Employment Classification- define full-time, part-time, temporary, interns. seasonal or any other employment classifications your company has. Also, clearly define what a non-exempt and exempt employee is and what your pay practices are for each;
• Hours- state the normal working hours for employees and what your company’s payroll week and pay dates are;
• Benefits- provide general information the rules relating to benefits, including vacation pay, sick pay, and unpaid leave. For health benefits, other insurance benefits, and retirement benefits, refer employees to the official plan documents that explain the rules.;
• Drug and alcohol abuse- generally state your policy prohibiting employees from using drugs or alcohol in the workplace. If you require drug testing, state the conditions under which this will be conducted. Also, include information regarding accommodating employees to deal with substance abuse through counseling or employee assistance programs;
• Harassment and Bullying- clearly state that sexual and other types of harassment are illegal and violate your policies. Let them know that you will not tolerate unwelcome sexual comments or conduct and that you will treat any complaints of harassment seriously. Specify how and to whom an employee can complain of harassment, what procedures you will follow to investigate complaints, and what actions will be taken against harassers. Also, clearly state that employees who report harassment in the workplace will not be retaliated against;
• Attendance- emphasize the importance of good attendance and showing up on time. Explain that numerous unexplained absences or repeated tardiness can be a basis for disciplinary action or even termination;
• Employee safety- state that employee safety is a major concern of your business and that employees are expected to follow safety rules and report any potentially dangerous conditions;
• Smoking- state that smoking is prohibited on all company premises;
• Complaints- describe what procedures should be followed to make and resolve complaints;
• Electronic communications- include your company policies on use of email, the Internet, social networking sites, blogs, and so on;
• Leave policies- list all leave of absence policies both required by federal and state law (such as FMLA and Time off to Attend School Activities) and offered by the employer (such as Bereavement Leave).

What Not to Include in your handbook

The language in employee handbooks may create binding obligations on employers. You should make sure that you can enforce and abide by everything you include in your Handbook consistently and fairly. Here are some other things to leave out:

• Specific reimbursement policies and other housekeeping items- if the policy doesn’t apply to all employees, or if you feel you may need to revise it more often than your Handbook, don’t include the policy;
• Promises of continued employment-For example, don’t put language in your handbook that promises employees a job if they follow your rules. A court might interpret this as a contract of employment that prevents you from firing employees without good cause;
• Rigid progressive discipline policies- while you may follow some form of progressive discipline for performance problems or misconduct you want to make sure to keep your options open. Don't obligate yourself to follow the same disciplinary pattern for every employee in every circumstance.

Update Your Handbook

Review handbooks at least once a year, and possibly even more frequently if new laws become effective midyear. Involve managers and supervisors in the handbook review process. They can best report on whether policies have become moot, are ignored or are simply no longer relevant to the business needs.

Notify Employees of Changes

Make sure employees receive proper notice of the changes. The best way to do this is to distribute the new Handbooks along with a memo summarizing any changes in the Handbook from the prior version. Make sure to have all employees sign an acknowledgment stating that they received the new Handbook and the revisions. If an employee refuses to sign, inform the individual in writing that the policies still will apply to apply to him or her, and retain a copy of that notice.

If you have several changes or a large change that affects many employees, it is a good idea to meet with all managers face-to-face to review policies and ensure the policies are understood and are followed consistently.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions. Whenever you require Human Resources or Payroll advice, or help navigating the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.

Reminder - Exempt Salaries will Increase to $913.00/week on 12/01/216

Department of Labor Final Rule - Effective December 1, 2016 

  

The Department of Labor's Final Rule increased the minimum salary for exempt "white collar" workers to $913 per week ($47,476 annually) as of 12/01/2016. 

Although several lawsuits have been filed, as of today, the DOL Rule will go into effect as planned.

In May, we reported on this change and recommend that you read our article, How To Deal with the DOL Overtime Rule for Exempt Employees

Also, we recommend you review the Department of Labor  FAQ section  for additional information pertinent to your workers's compensation.

Whenever you require Human Resources or Payroll advice, or help navigating the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.

 

Be Prepared - Changes to the New 2016 I-9 Form

New I-9 Forms Being Released in November

Employers should be aware the I-9 form has been updated, the new form will be available by Nov. 22, 2016, U.S. Citizenship and Immigration Services (USCIS) announced. Employers may continue to use the current version of Form I-9 with a revision date of 03/08/2013 until Jan. 21, 2017. After Jan. 21, all previous versions of the Form I-9 will be invalid. The new Form I-9 will have an expiration date of Aug. 31, 2019.

Changes to the Form I-9

• The new form is designed to help employers reduce technical errors for which they may be fined, and include:
• Validations on certain fields to ensure information is entered correctly. The form will validate the correct number of digits for a Social Security number or an expiration date on an identity document, for example.
• Drop-down lists and calendars.
• Embedded instructions for completing each field.
• Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over.
• Additional spaces to enter multiple preparers and translators. If the employee does not use a preparer or translator to assist in completing section 1, he or she must indicate so on a new check box labeled, "I did not use a preparer or translator."
• The requirement that workers provide only other last names used in Section 1, rather than all other names used. This is to avoid possible discrimination issues and to protect the privacy of transgender and other individuals who have changed their first names, Fay said.
• The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information in Section 1.
• A new "Citizenship/Immigration Status" field at the top of section 2.
• A dedicated area to enter additional information that employers are currently required to notate in the margins of the form, such as Temporary Protected Status and Optional Practical Training extensions.
• A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline enforcement audits.
• Separate instructions from the form. Employers are still required to present the instructions to the employee completing the form, however.

The new I-9 form is not an electronic I-9 as defined in the regulations, employers filling out the new form I-9 will still need to print the form and , obtain handwritten signatures, store in a safe place, monitor reverifications and updates and retype information into E-Verify if required.

For additional information see the I-9 Central US Citizenship and Immigration website.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions.

Whenever you require Human Resources or Payroll advice, or help navigating the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.