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.