EQHR Solutions

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.

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

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.

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

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:

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.
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.
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.
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.

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

eqHR Solutions offers professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Wednesday, December 27, 2017

Transgender Rights - Required Poster SB 396

Don’t Forget This New Posting Requirement

A new California law (SB 396) requires all California employers to post a “Transgender Rights in the Workplace” poster starting January 1, 2018.

The new transgender rights poster must be displayed along with other mandatory workplace notices in a conspicuous and available location. The Department of Fair Employment and Housing (DFEH) has developed the poster - CLICK HERE to download the poster.

The poster contains regulations that went into effect on July 1, 2017.

Topics covered by the poster include:

Definitions of terms such as transgender, gender identity, gender expression and gender transition.
A discussion on the right of employees to use restrooms, locker rooms and other similar facilities corresponding to their gender identity.
The importance of allowing an employee to dress in accordance with the employee’s gender identity and expression.

SB 396 also requires the mandatory sexual harassment and bully prevention training (AB 1825 & AB 2053) to include a section regarding gender identity, gender expression and sexual orientation. This training requirement applies to employers with 50 or more employees and requires training of all supervisors.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

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

Refresher on California’s Fair Pay Law

New Fair Pay requirements went in to effect in 2017 and state that an employer must pay the same for “substantially similar” work, when viewed as composite of skill, effort and responsibility.

The new regulations eliminated the prior standard of comparing work at the “same establishment.” Now employees can compare their pay to employees who do not perform same work or who are not employed in same position or location.

What is substantially similar work? According to the California Senate example:

Female secretary’s primary duties – answer telephone, make copies, transmit correspondence
Male assistant’s primary duties – answer telephone, transmit documents, perform light filing tasks
“Plaintiff’s burden would be to show that the man and woman should be paid the same wages because, when viewed as a composite of skill, effort, and responsibility, they were performing substantially similar jobs.”

The key is to look beyond job titles, the similarities can be subtle, some other examples:

Hotel housekeepers (mostly female) v. hotel custodians/janitors (mostly male)
Female cafe workers preparing meals on behalf factory’s shop floor workers vs. male cooks who make lunches for senior managers
Call center customer service reps vs. call center sales vs. call center support

What are the exceptions for when pay can be different?

Seniority system
Merit system
System that measures earnings by quantity or quality of production
Other bona fide (nondiscriminatory) factor consistent with business necessity as defined as an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve
Local job markets can be a factor for differences

Who has the burden of Proof?

Employee’s must show different pay under new “substantially similar” work standard. The employer must demonstrate that the differences are legitimate and nondiscriminatory.

Beginning in 2018:

Employers may not rely on the salary history of an applicant to make an offer or determine salary.
Employers may not seek salary history of applicant.
Employers must, upon reasonable request, provide the pay scale for a position to an applicant.
Applicants may voluntarily and without prompting disclose salary history information.
Employers are not prohibited from considering voluntarily disclosed salary history information in determining salary.

Best practices for employers to protect themselves:

Update hiring processes
Update employment applications
Train interviewers to not ask for prior salary information
Have pay scales available upon request
Have a form available for applicants to sign to document a voluntary and unsolicited disclosure of salary information.

All employers should analyze the content of their jobs to identify substantially similar work and to identify disparities in compensation.

It is recommended that any analysis done be conducted with employment counsel so that the attorney-client privilege is maintained. A self-audit conducted without counsel will be subject to discovery in any litigation, and failure to correct problems will be dangerous.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

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

Risks of a Contingent - Temporary Workforce

Contingent Workforce Arrangements

Continue to become more popular with employers.

Contingent Workforce includes:

Temporary staffing
Long-term staffing
Employee leasing
Third-party payroll providers
Managed services.

As the contingent workforce continues to grow, employers need to be aware of the risks associated with using non-traditional working arrangements.
Because temporary workers don't have long-term relationships with employers, they tend to be less loyal, potentially putting trade secrets and intellectual property at risk. Temporary workers are given access and privileges on their employers' IT systems and some are not informed of policies and procedures regarding data information and access during their onboarding.

Employers should provide security guidelines and processes to contingent workers during their onboarding. The same procedures for managing security access for regular staff should be applied to contingent workers. Contingent workers should also sign confidentiality and nondisclosure agreements to protect proprietary information.

Another risk of employing contingent workers for the long term is that courts may consider them eligible to for employer’s benefits. Employers should implement a tenure policy where after a certain period of time, a temporary employee must leave the position. In addition to considering a tenure policy, employers should ensure that their corporate benefits plan documents clearly define who is a nonemployee and specifically eliminate these workers from eligibility for benefits.

Employers should also consider unemployment compensation issues when hiring temporary workers. Often temporary workers will identify the employer as the business, not the temporary agency who provided the assignment. The employer will then deny the claim which can lead to additional inquiries as to the worker’s status. In some instances, both the temporary agency and the employer may be found to be liable as a joint employer.
Employers should weigh the benefits of having a flexible contingent workforce with some of the risks mentioned above. By putting a few safeguards in place, employers can help protect themselves from any potential pitfalls.

Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.

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