Tuesday, April 17, 2018

Understanding Non-Compete and Non-Solicitation Agreements



In California, non-compete agreements are illegal and void for employees and independent contractors.

The three main types of restrictions are (1) a true noncompete where an employee cannot work for a competitor, (2) a non-solicitation of customers restriction, and (3) and non-solicitation of employee’s restriction.

The only exception in California is for the owners of a business, corporation, LLC, or partnership. If you sell your ownership in a business, you can be prevented from turning around and soliciting your former customers and taking them from the business you sold.

If an employer terminates an employee who refuses to sign such an agreement they may be liable for wrongful termination in violation of public policy.

An employee can be prohibited from using trade secret and confidential information.

For example, they can be prohibited from using a confidential customer list to solicit customers. However, the claimed protection of trade secrets cannot be used to impose a noncompete. A contract term saying an employee cannot use confidential company information to solicit customers post-employment is a valid protection of company information. This allows a former employee to compete, so long as they are not using confidential information.

What about Non-Solicitation restrictions?

Most states allow employers to ask employees to sign non-solicitation agreements, in which they agree that they will not solicit their coworkers for a given period after leaving the company. Some states will even allow a “no hire” agreement, in which the employee agrees not to hire former coworkers, even if the employee has taken no steps to actively seek out or encourage the coworkers to leave the company.

In California, the courts have generally held that “no hire” agreements are illegal. In other words, your employer cannot stop you from hiring co-workers who decide to leave of their own accord.

On the other hand, a non-solicitation agreement that merely prohibits you from actively reaching out to former coworkers about job opportunities is more likely to be enforced. However, even then, the agreement should be limited in time (for example, one or two years) and scope (for example, limited to coworkers with whom you worked).

What about a Non-Poaching agreement?

Careful, the federal government is starting to go after companies who have agreements with other companies not to “poach” or solicit their employees. The Department of Justice views this as violating Anti-trust laws is starting to file criminal charges against employers in these arrangements. 

The bottom line about non-compete and non-solicitation agreements is that in most cases they are illegal and are not enforceable in California. Even if you are an out of state employer who employs workers in California, they can still not be enforced. Many employers still have employees sign these agreements and think they are enforceable, which is surprising considering the stance that California has taken on the matter. 

Lauren Sims is the article’s author and the Director of Human Resources.

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.








Monday, April 16, 2018

Summer Interns are Coming - Are you Prepared?


If you are planning on hiring summer interns this year, you should be aware of the issues involved. Employers always ask the question, should I pay my interns? The easiest and safest answer is yes, you should pay your interns at least the minimum wage and thereby avoid any potential claims and issues.

However, now that the Department of Labor has adopted a "primary-beneficiary test" for determining whether interns are employees, more employers are considering have unpaid internships.

This new text eliminates the prior rigid test whose six parts all had to be met for someone to be considered an unpaid intern and not an employee.

The new federal guidelines apply in California, as the state doesn't have policies or case law on the topic.

The new DOL test does not require each of its seven factors to be met. The new test includes consideration of the extent to which:
  • Both parties understand that the intern is not entitled to compensation.
  • The internship provides training that would be given in an educational environment.
  • The intern's completion of the program entitles him or her to academic credit.
  • The internship corresponds with the academic calendar.
  • The internship's duration is limited to the period when the internship educates the intern.
  • The intern's work complements rather than displaces the work of paid employees while providing significant educational benefits.
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the internship's end.
If an employer decides to offer unpaid internships, there must be clear communication and documentation that both the intern and the employer have agreed that the internship will be unpaid.

Employers should also connect the internship with the academic progression of the intern. If the intern can get academic credit for the internships, it will go far in supporting that the internship is to the primary benefit of the intern.

Employers should be cautious that managers do not view interns as potential free summer labor. Employers should provide interaction, learning, mentoring and other training opportunities to create a valuable experience for their interns.

Lauren Sims is the article’s author and the Director of Human Resources.

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.




Do You Offer Makeup Time?


Makeup time gives employees who are entitled to overtime flexibility so that they can attend to personal matters without using vacation time.


Makeup time is available to California employees and allows the employee to “makeup” work hours during a week that would otherwise be lost because of some personal obligation. 


For example, an employee has a doctor’s appointment on a Friday afternoon that will take 3 hours. Makeup time allows the employee to work 3 extra hours earlier in the week so they will not have to use paid time off or take the hours as unpaid.

In this example, if the employee works 9 hours on Monday, Tuesday, and Wednesday, they would not be entitled of overtime for the ninth hour worked on those days, because those hours are applied to the hours lost on Friday afternoon.


Things to keep in mind:

  • The employee needs to provide a signed written request to the employer for each occasion that they want to make up time 
  • Employers should have a carefully drafted policy on makeup time and a system to document employee requests
  • Any hours over 11 in a day or 40 in a week must be paid as overtime, even if makeup time is used during that week
  • Makeup time for a recurring obligation can be requested up to 4 weeks in advance
  • Makeup time must be for time missed during the same week
  • Employers cannot solicit or encourage employees to request makeup time, but employers may inform employees of this option


Developing a compliant policy and procedure can be easy to administrate and would provide an excellent option to offer your non-exempt employees.

Lauren Sims is the article’s author and the Director of Human Resources.

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.


Monday, March 26, 2018

California Pay Statement Requirements


According to the Labor Enforcement Task Force, the second most frequent violation among California employers between 2012-2017 was related to improper or missing pay statements.


Pay statement violations can be low hanging fruit for plaintiff attorneys looking for things to tack on to other complaints their clients bring against companies. We have seen simple workers’ comp disagreements balloon into class action lawsuits for something as simple as an employer not having their address on their pay statements.

Here is a checkup for California employers to make sure they are complying with pay stub laws:

Timing of Pay

California employees must be paid at least twice a month. Compensation earned between the 1st and the 15th of the month must be paid no later than the 26th day of the same month. Compensation earned from the 16th of the month through the end of the month must be paid no later than the 10th day of the following month.

If an employer pays employees weekly, every two weeks, or twice a month according to a different earning schedule, it may comply with the payday laws by paying employees for work performed within seven days after the end of the pay period.

Employers must notify employees of the time, date, and place they will be paid.

Executive, administrative, and professional employees may be paid only once a month, as long as they are paid by the 26th day of the month and their paychecks include their entire salary for the month. Employees who work for a farm labor contractor must be paid every week.


Pay Stub Requirements

California law requires employers to give employees an itemized written statement with every paycheck. This statement, which can be in the form of a detachable pay stub or a separate document, must include the following information:
  1. Total gross wages the employee earned during the pay period
  2. Total hours the employee worked during the pay period
  3. The number of units and rate for any piece-work the employee performed
  4. All deductions from the employee’s pay
  5. Employee’s net pay
  6. The dates included in the pay period
  7. Employee’s name and the last four digits of the employee’s Social Security number
  8. Employer’s full name and address, and

All hourly rates in effect during the pay period and the number of hours the employee worked at each rate

Employers who use a payroll company to prepare wage statements are responsible for providing the payroll company with all information that must be contained in the wage statement. Furthermore, employers should review wage statements for completeness and accuracy and not assume the wage statements are accurate. Accuracy is vital and minor mistakes can be costly, with employers facing large fines and penalties, even for minor omissions. California law imposes penalties on employers who do not comply with wage statement requirements:

  • Failure to provide an employee with a wage statement may result in a penalty of $250 per employee for the initial violation and $1,000 per employee for subsequent violations
  • Providing an employee with an inaccurate wage statement means facing a penalty of up to $4,000 per employee

Lauren Sims is the article’s author and the Director of Human Resources.

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.

The NLRA Applies to Non-Unionized Employers




Employers must recognize that regulations under the National Labor Relations Act (NLRA) do not always apply exclusively to unionized workforces.

Both unionized and non-unionized employers should become familiar with the NLRA and ensure that their communication policies are compliant. 

The NLRA protects the rights of employees to engage in activity that is undertaken with respect to wages and working conditions, or for mutual aid or protection in the workplace. 

The National Labor Relations Board (NLRB), which generally enforces the NLRA, has become increasingly active in issuing rules and guidance that affect many employers in non-unionized workplaces. The risk to the employer is that it may enact policies or procedures that violate the NLRA, subjecting the employer to complaints, actions, fines and penalties from the NLRB.

Company communications that may be covered by the NLRA include e-mails, bulletin board materials, door-to-door solicitations, bumper stickers on employee vehicles in parking lots, T-shirts and pins, employee conversations, literary distributions, and company intranets. This list is not all-inclusive, but it is important to understand how broad the NLRA can be.

The NLRB has stated that policies prohibiting use of company e-mails and bulletin boards for non-job-related solicitations were enforceable. Employers must ensure that all e-mail and bulletin board policies must be uniformly enforced and may not specifically target union-related communications. 

Other types of solicitations and distributions, however, require a different set of rules. When it comes to non-email and non-bulletin board solicitations, such as in-person solicitations, the NLRA allows employer policies prohibiting such during working hours. However, union solicitations in particular must be permitted during non-working hours, even in work areas.

Then, under somewhat different standards, distributions of leaflets or other written material, which pose safety and littering concerns, may be prohibited during work hours and in work areas, but must be allowed during non-work time in non-working areas.

The NLRB has ruled against policies that prohibit wage discussions among employees, whether unionized or non-unionized, on the basis its considered a “protected concerted activity.” 

The pervasive use of social media has led to new Board rulings in connection with protected concerted activity in the context of social media postings and communications.

The NLRB found that an employer engaged in an unfair labor practice when it fired five employees who had posted comments on Facebook regarding poor job performance previously expressed by one of their coworkers. The NLRB held that the discharged employees were engaged in protected concerted activity. In fact, the Board found that this was a textbook example of concerted activity, even though the activity that took place was online. One employee reached out to her coworkers for assistance through Facebook regarding job performance and staffing issues in anticipation of a meeting with a manager. Thus, this activity, even through the internet, constituted concerted activity, as it related to working conditions. Similarly, the Board has found that Facebook postings protesting supervisory actions can constitute protected concerted activity.


In other rulings, the NLRB has also been asked to review blogging and internet posting policies of nonunion employers. The Board has found that blanket prohibitions on criticizing an employer violate the NLRA because it would prohibit employees from engaging in certain protected concerted activity.

The Board has found in other cases, however, that in order to be protected under the NLRA, this type of online activity must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him or herself. Thus, Facebook postings, for example, that simply air individual gripes would not be considered concerted.

These are the primary ways in which the NLRA can apply to the private nonunion workplace. Generally speaking, what employers should keep in mind is that whenever employees engage in concerted activity that addresses wages and/or working conditions, there is a likelihood that such behavior is protected by the NLRA.

Lauren Sims is the article’s author and the Director of Human Resources.

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.





Drug Testing in the Workplace


At a recent labor law seminar, a labor attorney shared how many of his clients in Colorado had to eliminate marijuana from their pre-employment drug screening because they found that none of their candidates were passing the drug screening and they were having difficulty hiring.

Now that marijuana has been legalized in California, I imagine that many employers are wondering how this will impact their drug testing policies. Those employers who don’t currently have drug testing policies may be considering implementing one. Either way, employers must understand the legal requirements that apply to workplace drug testing.

When can you test?

California’s Constitution contains a right to privacy that can be violated by workplace drug testing. Employers have to be very cautious about when and how they conduct drug testing so that they do not violate that constitutional right. A key issue related to drug testing is when the test occurs; your ability to conduct drug tests varies depending on whether you test in the pre-employment stage or during employment.

Employers can conduct pre-employment drug testing and require applicants to pass a pre-employment drug test. This type of testing is “suspicionless,” meaning it is not based on any suspicion that the person has used drugs. Pre-employment drug tests should be conducted pursuant to a drug-free workplace policy.

If you require pre-employment drug tests, communicate that requirement to applicants during the interview process. Also, obtain the applicant’s consent to the pre-employment drug test. You should not conduct pre-employment drug testing until after you make a job offer to an applicant. Provide the applicant with a clearly drafted offer letter which explains that the job offer is contingent on the applicant passing the drug test; i.e., if the applicant doesn’t pass the drug test, the offer will be withdrawn.

If you use pre-employment drug testing, you should be consistent in who you test. You can test all applicants for employment or all applicants for certain positions. Do not test some applicants and not others, and do not pick and choose which applicants you will test. Doing so could expose you to a claim that you are selecting applicants for testing based on discriminatory reasons, such as race or ethnicity.

The ability to conduct drug testing changes once someone begins working for the company. Once they are an employee, you can conduct drug tests only if you have a reasonable suspicion that the employee is impaired. What constitutes “reasonable suspicion” will depend on the circumstances. Generally, you should have specific, objective evidence that the employee is impaired. Possible signs of impairment could include an employee slurring his words or having trouble walking or performing job duties, smelling like alcohol or marijuana, or showing other physical signs of impairment. 

Reasonable suspicion is more than just a belief that someone may be using drugs or hearing from another employee that someone may be using. If you have a reasonable suspicion that an employee is impaired, you should send the employee to a facility to be tested. Do not let the employee drive him or herself to be tested; either drive the employee or arrange for transportation. If he/she fails the drug test, you may terminate employment.

Random or suspicionless, drug testing of current employees is not allowed except for employers who are subject to federal Department of Transportation regulations and for employers in certain highly regulated industries. In addition, random testing of employees in certain security or safety positions may be allowed if the employee’s privacy interests are outweighed by the employer’s safety interests.


Legalized Marijuana


Under California’s Compassionate Use Act (CUA), individuals can obtain and use marijuana for medical purposes as directed by a physician, and Proposition 64 made the recreational use of marijuana legal as well. However, neither the CUA nor Proposition 64 excuses an applicant’s marijuana use for the purposes of workplace drug testing. You can still deny employment to an applicant who tests positive for marijuana, even if the applicant has a medical marijuana card. 

Best Practices:


If you already have a drug-free workplace policy in place, you may want to recirculate it to employees with a reminder that marijuana use is still prohibited in the workplace. 
Your policy should explain that you prohibit drug and alcohol use by employees while working, discuss the consequences of not complying with the policy and explain the requirements of your drug testing policy. 

If you don’t have a drug- and alcohol-free workplace policy, consider whether such a policy may be appropriate for your workplace. 

Train supervisors about your policy, including how to identify signs of drug or alcohol impairment. 


Lauren Sims is the article’s author and the Director of Human Resources. 

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.


Tuesday, March 13, 2018

eqHR Solutions - Shelly Collet

We are pleased to announce the addition of Shelly Collett to our staff of senior level HR Generalist.

Shelly is a Human Resource Professional with 20 years of experience in providing guidance and leadership to staff and senior management in both small and large organizations. Her broad experience includes developing company specific HR policies and procedures, compliance, benefits, employee relations, payroll, talent acquisition, training, and management.

Prior to joining EQHR, Shelly’s professional experience was primarily in the hospitality industry where she held senior level directorships in HR. In her most recent position, as Director of Human Resources for an exclusive private golf club, Shelly organized the club’s transition and restructuring from a corporate owned business to a member-owned equity club. Shelly’s strong background and management leadership provide her with the ability to step into a business and successfully assist the onsite team in achieving and maintaining their HR goals including compliance, defining and implementing training programs, recruiting, employee engagement, worker’s compensation, benefits and more.

Shelly lives for problem-solving and her passion is employee relations, coaching, training and mentoring. An adventurer by nature, with a lifetime goal to travel to all the places on her bucket list, she also enjoys the challenge of venturing into any corporate terrain where there is a need for HR systems and practices.


Shelly earned her Bachelor of Arts degree from California State University, Fullerton. She is a member of the Society for Human Resource Management and the Professionals in Human Resources Association.

eqHR Solutions - William Jefferson

We are pleased to announce the addition of William Jefferson to our payroll systems implementation and training division. 

William specializes in processing, implementation, training, and maintenance of ADP products and services to be customized to meet the needs of each organization. He is an expert in ADP WFN Payroll, Time & Attendance, and Payroll Tax Service.
Will has over 20 years of payroll and tax compliance experience. He expertise is in problem-solving, process improvements, and increasing overall efficiency surrounding payroll/HRIS.
Prior to eqHR, William worked for ADP managing small to midsize employers. He has worked with internal and external business partners on behalf of the clients to identify root causes and develop synergy and seamless processes and procedures through issue resolution.

William is certified payroll profession (CPP) from the American Payroll Association and obtained a BA degree from California State University Sacramento. He is currently working to complete a degree in Human Resource Management at Brandman University.

Sunday, February 25, 2018

Workplace Violence Prevention Tips


As the country attempts to recover from the tragedy last week in Parkland, FL, employers should take a step back and recognize the world in which we currently live and realize that violence is prevalent.

According to OSHA, an average of nearly 2 million American workers report having been a victim of violence at work. HR must ensure that workers know how to stay safe in the face of a threat.

Types of workplace violence

The FBI breaks down the types of workplace violence into four different categories:

  1. Violent acts by criminals who have no other connection with the workplace, but enter to commit robbery or another crime.
  2. Violence directed at employees by customers, clients, patients, students, inmates, or any others for whom an organization provides services.
  3. Violence against coworkers, supervisors, or managers by a present or former employee.
  4. Violence committed in the workplace by someone who doesn’t work there, but has a personal relationship with an employee—an abusive spouse or domestic partner.

Employers have an important role in preventing workplace violence. There are many different strategies employers can use to prevent violence, including the ones below compiled from the FBI, SHRM and Business Management Daily.

Strategies

  1. Adopt a formal workplace violence policy and prevention program and communicate it to employees.
  2. Have managers take an active role in employee awareness of the plan; make sure they are alert to warning signs and know how to respond.
  3. Provide regular workplace violence and bullying prevention training for all employees (both new and current), supervisors and managers.
  4. Foster a climate of trust and respect among workers and between employees and management; eradicate a bad culture of bullying or harassment.
  5. Look out for and stake steps to reduce negativity and stress in the workplace, which can precipitate problematic behavior.
  6. Identify and screen out potentially violent individuals before hiring while maintaining compliance with privacy protections and antidiscrimination laws.
  7. Establish procedures and avenues for employees to report threats, other violence or if there’s imminent danger.
  8. Start a mediation program to resolve employee disputes rather than letting them simmer.
  9. Document any threats and your response to them including terminating employees who make a threat.
  10. Terminate employees with care and caution by involving witnesses or security for violent employees.
  11. Evaluate security systems regularly including alarms, ID keys, passcodes, cameras and personnel.
  12. Make sure employees know not to hold open secure access doors for others who don’t have credentials.
  13. Ensure employees with restraining or protective orders against an individual provide that person’s information and photo to security.

Training

Training employees how to keep themselves safe in a dangerous situation is an important piece of the puzzle. While some employees may not feel comfortable with this training, it is essential not to turn a blind eye to potential risks.
Most experts recommend teaching people to run, hide or fight—in that ideal order. Role-playing can also help people prepare for how they might respond by exposing them, in a safe environment, to what may take place in a time of crisis.
Managers should take an active role in ensuring their employees understand the company’s emergency procedures and feel comfortable reporting potential situations.
Workplace violence in definitely a situation where an ounce of prevention is worth a pound of cure. The most effective prevention plan is one that is implemented before a problem occurs. Employees need to understand what to do in an emergency and what the company’s response will be.

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.


Reminder- EEO-1 Deadline Early this Year


Beginning in 2018, EEO-1 reports now much be filed with the EEOC by March 31, 2018. The deadline was previously in September.

What is an EEO-1 Report?

The EEO-1 Form is a report filed with the Equal Employment Opportunity Commission (EEOC), mandated by Title VII of the Civil Rights Act of 1967, as amended by the Equal Employment Opportunity Act of 1972. The Act requires that employers report on the racial/ethnic and gender makeup of their workforce by job categories.

Who is required to file an EEO-1 Report?

All employers that are located in the 50 states and the District of Columbia and have at least 100 employees are required to file an EEO-1 report annually with the EEOC. Federal government contractors and first-tier subcontractors with 50 or more employees and at least $50,000 in contracts must file annually as well. If an employer has met that threshold at some point during the year, and especially during the fourth quarter, we recommend filing to be in compliance.

What data needs to be reported on an EEO-1 Report?

The 2017 EEO-1 report must be based on a payroll snapshot taken between October 1, 2017 and December 31, 2017. The report must then be filed by March 31, 2018. Employers will only be required to report on employee numbers by establishment, broken down by EEO-1 job category, sex, and race or ethnicity. For now, employers are not being required to report on compensation or hours worked.
The reporting system is entirely online on the EEOC website including instructions and FAQ's.  First-time filers can find a simple registration form online as well. When registration is completed, the EEOC will issue a company number to the employer, and filers will be able to log into the system.

Best practices to get ready for the EEO-1

  • Have all employees and candidates complete a voluntary self-identification form.
  • Employees who do not complete the form can be identified via “visual observation.”
Classify all jobs within your organization in one of the EEOC classifications (for more details visit:) https://www.eeoc.gov/employers/eeo1survey/jobclassguide.cfm
  1. Executives and Senior Officers and Managers
  2. First/Mid-level Officers and Managers
  3. Professionals
  4. Technicians
  5. Sales Workers
  6. Administrative Support Workers
  7. Craft Workers
  8. Operatives
  9. Labors and Helpers
  10. Service Workers

  • Track data in HRIS or other systems that also include gender, race/ethnicity, and job classification data.


Other details
  • Employers with multiple physical locations are required to complete reports covering its principal or headquarters office and separate reports for each establishment employing 50 or more persons, and either (1) a separate report for each establishment employing fewer than 50 employees, or (2) an Establishment List showing the name, address, and total employment for each establishment employing fewer than 50 persons.
  • Companies that are affiliated through common ownership and/or centralized management should to be filed as part of their parent company’s report.

Don’t think you’ll be ready in time?
You can request an extension, but you must do so by March 31, 2018. To do so, you must email e1.extensions@eeoc.gov with your company name, company number, address and contact information for the person responsible for the report.
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.


Tuesday, January 23, 2018

Should Your Business Offer an Employee Assistance Program (EAP)?

EAPs provide needs assessment, help, counseling, and referrals for employees and their family members when faced with mental health or emotional issues. EAPs assist the employees when he or she needs help dealing with life events, workplace issues, and other personal problems and challenges.
An Employee Assistance Program (EAP) is often offered as part of a comprehensive benefits package that employers provide their employees.
EAPs are frequently, although not always, thrown in by the employer’s health or life and disability insurance plan. Sometimes employers will offer a standalone EAP at a nominal cost per employee.

Employee Assistance Program (EAP) offer assistance in these areas:

  • Alcohol and substance abuse
  • Marital difficulties
  • Financial problems
  • Emotional problems
  • Legal problems

More comprehensive EAPs will also offer referrals for day care, elder care, and even pet care service.
EAPs will refer employees to counseling and other support resources and often provide 2-3 free sessions. Short-term counseling and support may be all that an employee needs but if they require more long-term assistance they can provide resources for that as well.
EAPs give employers a referral option when managers and Human Resources staff are helping an employee deal with life and work issues that are beyond their training and scope. It also allows HR and managers to maintain a professional distance from employees and not get embroiled in their personal life issues. Managers and Human Resources staff are generally not trained to provide therapy or counseling to employees and EAPs give them a way to help without turning away an employee in need.
EAPs can also be invaluable when an employer is faced with a crisis. For example, recently one of our clients lost an employee in a car accident. The EAP referred them to a grief counselor to come onsite to talk to employees, as well as provide on-going support for any grieving employees who needed it.
Little evidence exists that demonstrates if, EAPs are in fact effective in maintaining productivity and healthy, well employees. However, EAPs give the employer an option when dealing with troubled staff members whom they are ill-equipped, and not in the business, to serve.
Because of this, an EAP can be an appreciated part of a benefits package, and since the cost is usually nominal or free, one that will more than provide value to an organization.
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.


American Disabilities (ADA) & CA Fair Employment and Housing (FEHA) Leaves

Rules Governing ADA & FEHA Leaves


When employees are diagnosed with serious illnesses or injuries, they often need to take time off to seek treatment and recover. If the employee’s condition qualifies as a disability under the American Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA), then an employer may be required to provide the employee with a leave of absence as a reasonable accommodation.

A reasonable accommodation is a job modification or adjustment provided to a qualifying employee with a disability that allows the employee to perform the essential functions of her job.

An employer does not have to provide a leave of absence under the ADA if it can show that doing so would cause an “undue hardship.” However, the employer is still required to comply with other federal and state laws, such as the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), which may provide a separate entitlement to the employee for a leave absence.

California prohibits disability discrimination under the Fair Employment and Housing Act (FEHA) 


FEHA is administered by the Department of Fair Employment and Housing (DFEH). Regulations issued by the DFEH provide that a leave of absence can be a reasonable accommodation under the FEHA.

According to the FEHA regulations:

  • Holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.
  • When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.
  • An employer is not required to provide an indefinite leave of absence as a reasonable accommodation.


There are no regulations or guidelines detailing the precise amount of leave that employers must give employees as a reasonable accommodation, and court decisions have held that each case is considered on its specific facts and circumstances.

Under the ADA and FEHA, an employer may not have to provide a leave of absence as a reasonable accommodation if it creates an “undue hardship” for the employer. The ADA and FEHA define undue hardship similarly.

Under the ADA an undue hardship is defined as a “significant difficulty or expense incurred by a covered entity,” which is measured by the following factors:


  • The nature and the net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding.
  • The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources.
  • The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;
  • The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
  • The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.


Employers should be cautious about terminating an employee who cannot return from FMLA or CFRA leave. If an employee has exhausted FMLA or CFRA and needs an extension, arbitrarily saying 'no' without a reasonable business explanation is not a good practice.

The employer should also offer the person with a disability an alternative accommodation, such as a transfer.

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.




Employment Background Checks and the Fair Credit Reporting Act

If your company performs pre-hire background checks, you should be aware of all of your responsibilities. While background checks can help employers avoid legal claims, such as those for negligent hiring, the gathering and using this information can carry legal risk if not done properly.

federal Fair Credit Reporting Act (FCRA)

Employee background checks are considered "consumer reports" under the federal Fair Credit Reporting Act (FCRA), and there are civil and statutory penalties for failing to comply with the FCRA's procedural requirements. The FCRA regulates the accuracy, fairness and privacy of information in consumer reports, which are defined as "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility" for credit, insurance or employment purposes. Thus, the FCRA is not limited to credit reporting—it extends to criminal and civil records, civil lawsuits, reference checks and other information obtained by a consumer reporting agency.

The FCRA allows job applicants to sue employers who fail to comply with any requirement imposed by the law. For companies that solicit large numbers of applicants, failure to abide by the FCRA's requirements can result in class-action liability with millions of dollars in exposure.

Employers must follow certain procedures under the FCRA if they intend to take adverse action such as revoking a job offer or firing an employee, based in whole or in part on the contents of a consumer report. Failure to properly execute one of these steps could result in liability under the FCRA.

The FCRA's required process steps include:

  1. Disclosure and pre-authorization. Before obtaining a report, the employer must provide a “clear and conspicuous" written disclosure to the consumer that a consumer report may be obtained. The employer must also obtain the applicant or employee's written authorization.
  2. Pre-adverse action letter/copy of report/rights under FCRA. Before making a final employment decision based in whole or even in part on the results of a consumer report, the employer must provide a pre-adverse action notice to the individual, which includes a copy of the applicant's consumer report and a document summarizing their rights under the FCRA.
  3. Waiting period. While not explicitly prescribed by the FCRA, courts and Federal Trade Commission guidance suggest five days is a reasonable period to wait after the pre-adverse action notice and before taking adverse action.
  4. Adverse action letter. After the waiting period, the employer is required to provide a post-adverse action notice to the individual, which includes the name and contact information of the consumer reporting agency that provided the background check on which the adverse employment decision was based; a statement advising the individual that the consumer reporting agency did not make the adverse employment decision and therefore cannot provide any reasons why the adverse action was taken; and notification that the applicant or employee is entitled to receive a free copy of the background check or consumer report on which the adverse action was based within a 60-day period.

In addition to the FCRA requirements, California does not allow employers to consider or seek information about certain types of criminal records, including an arrest or a detention that did not result in a conviction and certain marijuana infractions and misdemeanor convictions older than two years.
Also, in cities like Los Angeles, there are ordinances that require additional interactive steps if an adverse action is sought as a result of a finding on a criminal background check.
Most background check companies can help employers ensure they are providing the appropriate disclosures and obtaining the appropriate authorizations. However, employers should never become complacent and should understand all the requirements to protect themselves from a costly legal action.
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.