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HR Tips & eAlerts

At Accuchex, we believe that the human resources department is the heart of every organization. It’s important that HR departments run as smoothly and efficiently as possible. Below you can find a collection of tips for HR professionals and eAlerts with law and compliance updates. This page is updated on a monthly basis.


California Law Alert

September 5th, 2019

California Harassment Training Deadline Extended

California has passed an emergency bill to extend the deadline for the first round of sexual harassment training by one year. Previously, employers with five or more employees were required to provide interactive sexual harassment prevention training to all employees in California by January 1, 2020; the deadline is now January 1, 2021.

The substantive requirements remain the same. Employers must provide:

  • At least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees
  • At least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees
  • “Refresher training” every two years thereafter
  • The applicable training within six months of hire for new employees or within six months of entering a supervisory position

Employers who provide training that complies with the law in 2019 do not need to do so again until two years have passed from the date of training. For instance, if you trained all employees on July 14, 2019 (good work!), you would have until July 14, 2021, to retrain those same employees. However, if you hire new employees or promote any existing employees to supervisory positions, they need to receive the applicable training by January 1, 2021.

A Catch: Seasonal and Temporary Employees
The training timeline was not changed for seasonal and temporary employees. Beginning January 1, 2020, employers must provide training for seasonal and temporary employees, as well as any employee who is hired to work for less than six months, within 30 calendar days of hire or within their first 100 hours worked, whichever comes first. Temporary services employers are responsible for training their employees.

Why is there a different timeline for seasonal and temporary employees? Think of it this way: California wants everyone who holds a job in 2020 to be trained by Jan 1, 2021. To achieve that, the state needs to maintain the previous training timeline for seasonal and temporary employees; otherwise, someone who works only in the summer, or between Thanksgiving and New Year’s Eve, may not receive training by the deadline


The Three Ways HR Makes Employment More Profitable

HR covers a lot of territory—much of it cluttered with paperwork—but it really does have a precise business purpose. The point of HR is to make employment more profitable. HR does this in three fundamental ways. First, HR protects the organization against employment-related lawsuits and fines. Second, it reduces the costs of employment. And third, it maximizes employee productivity. In short, HR helps the employer save money and make money in all things related to employment.  Protection from Lawsuits and Fines
Nothing can prevent an employer from being sued, but good HR can substantially reduce the risk of lawsuits and other costly consequences of non-compliance by ensuring that the organization follows federal, state, and municipal legal requirements.

The government has multiple agencies tasked with investigating violations and administering fines. The Equal Employment Opportunity Commission investigates discrimination claims. The Occupational Safety and Health Administration looks into workplace hazards and safety violations. The IRS and Department of Labor may ask to see your books. And the U.S. Citizenship and Immigration Services might audit your I-9s.

The penalties for violations can range from amounts that are mildly inconvenient to those that are financially devastating, so you don’t want to leave these areas to chance or hope you stay under the radar. Employing people comes with risk, and it’s an HR job to manage and reduce that risk.

“Ignoring HR or neglecting its responsibilities puts the organization at greater risk, wastes money on subpar and inefficient operations, and hinders employers and employees from reaching their full potential.”

Reduction of Employment Costs
Competitive wages and benefits, office perks, and first-rate technology can help you find and keep great workers, and they can help you improve your products, boost your sales, and grow the business. But there are also employment costs HR can help cut. Hiring and recruitment processes can be streamlined and assessed for inefficiencies. Turnover costs can be reduced by improving your onboarding process, communications, and engagement efforts. Inefficiencies can be resolved through performance management and discipline. And offering some form of Paid Time Off can enable sick employees to stay home and rest so they don’t come to work sick, spread their germs, and reduce the productivity of the office even more than if they’d stayed home.

Increased Employee Productivity
In addition to preventing and reducing costs related to employment, HR can also help the organization increase its revenue by encouraging and helping employees to be more collaborative, innovative, creative, knowledgeable, skilled, and just plain better at their jobs. Coaching, training, skill development, career advancement, outside education, and culture advancements are tried-and-true productivity-building methods. They also have the added perk of directly benefiting your employees.

When HR works on maximizing productivity, it’s able to serve the interests of both the employer and employees in ways that are visible and appreciated by all parties. Employers bring in more revenue, employees develop professionally, and customers get better service. Everybody’s happy.

Good for Business
The business case is the case for HR. Ignoring HR or neglecting its responsibilities puts the organization at greater risk, wastes money on subpar and inefficient operations, and hinders employers and employees from reaching their full potential. Investing in HR reduces risk, eliminates inefficiencies, and improves productivity. Whether you’re a business owner, office manager, HR department of one, or on a team of HR practitioners, spending time on HR bolsters everyone’s success.


When Employment Is Impersonal, Courtesy Goes Out the Door

Have you heard about the phenomenon of employees “ghosting” their employers? Today we look at this unfortunate phenomenon, why it’s happening, and what employers can do to prevent it.

The Washington Post reported on an odd, eyebrow-raising phenomenon in the working world: employees are “ghosting” their employers. If you’re unfamiliar with the term, ghosting is an unfortunately common practice in the dating scene. It occurs when someone breaks off a relationship without warning or notice and then ceases all communication. In the business scene, it’s a catchier, hipper name for job abandonment. Instead of giving the courtesy of a two-week notice—or any notice for that matter—employees just vanish without a word, silently moving on to their next endeavor.

These employees feel comfortable abandoning their jobs because they believe ghosting their employers won’t come back to haunt them. And they may be right. With the unemployment rate being remarkably low and the demand for skills remarkably high, workers often have the upper hand, so much so there’s sometimes little incentive for them to depart cordially. They’re not worried about a bad reference, and it’s nothing to them if their former employer now scrambles to find coverage.

While ghosting is one way that employees quit their jobs, another is when a worker takes pains to publicize their disapproval, usually online, enumerating grievance after grievance to any interested parties. Would-be employees—arguably the most interested party—only need to search a prospective employer’s name on the internet to see what the current and former employees have to say about its working conditions.

Even if most employees still leave their jobs with adequate notice and common courtesy, the fact is that workers are quitting their jobs in record numbers. With so many workers jumping from job to job—eager for better compensation, career growth, improved cultural fit, or just something different—and with the demand for work greater than the supply of unemployed workers, employers are searching for effective ways to keep talented people in their organizations and encourage positive brand messaging from their employees.

The Upside and Downside of the Employment Relationship
As we discussed in September, the best way for employers to attract and retain happy, hard-working people is to be useful to their employees, providing things such as skill and career development, coaching, meaningful work, praise and appreciation, community, and monetary rewards for organizational success (see the article linked below to learn more). These benefits are important because the employment relationship is fundamentally about usefulness. The more useful an employer can be to its employees, the more it can satisfy their wants and needs, the stronger the incentive will be for employees to stay.

But this basis of the employment relationship is also why employers and employees don’t always get along. And it is why some employees vanish without a word or—worse—with a diatribe against their employer. When people have personal connections, they’re motivated to work through their conflicting interests with respect, care, and a willingness to compromise. But if their relationship is about nothing but utility, if the other’s momentary usefulness is all that matters, then there’s no incentive to be courteous and understanding when conflicts arise or when one party ceases to be of use. The relationship can be discarded as you would discard a dead battery, bent key, or some other now-useless thing.

What’s more, some employees are going to leave no matter what an employer can offer. If retaining employees isn’t always possible, employers can still endeavor to make the departures smooth and cordial so as to minimize turnover expenses and encourage former employees to speak well of the organization.

The Role of HR 
When retaining employees isn’t possible or desirable, HR still has an important role. Here are a few ways to respectfully say “goodbye” when the time comes:

  1. Address poor employee performance early. When an employee isn’t getting their job done or otherwise meeting expectations, the easy answer is often to terminate their employment. However, immediate termination, particularly with no warning or attempts by the employer to correct the performance, sends the employee away with a chip on their shoulder and leaves the employer without adequate coverage. If the employee is feeling particularly retaliatory, they may launch into a public tirade online or file an unlawful termination claim. As an alternative to immediate termination, you can put the employee on a performance improvement plan. If successful, it would further both your interests and the employee’s; and, if not, it would at least show a good faith attempt to give the employee a chance to improve, reducing liability if termination becomes necessary.
  2. Solicit employee feedback. As you may know, most employees in the United States are either unengaged or actively disengaged. Disengaged employees are more likely to complain about their jobs or their bosses or other work-related matters, but probably not to their employers. Some of their complaints might be legitimate and worth addressing, but if they’re only talking to each other or to people outside the company, employers can’t do anything to resolve the specific problems, and the negativity only begets more negativity. The solution: collaborate with employees to identify and address problems in the workplace. You can solicit direct feedback through surveys, stay interviews, exit interviews, and regular check-ins between managers and subordinates. Employees will only be willing to share the concerns, however, if they believe it’s safe to do so and they trust that their employer will at least attempt, in good faith, to address their concerns.
  3. Say goodbye with style. It can be sad, and an extra challenge, when good employees take jobs elsewhere. But it can also be a cause for celebration, and both the departing and remaining employees will appreciate a nice send-off, even if it’s just through a company-wide email. When you celebrate the bittersweet successes of your employees, you show you really care about their professional development and them as individuals. They move on with good will and with a good impression of their time at your organization.

It’s wonderful if employers can motivate good employees to stay with their organization, but that’s not always realistic. Since some employees—both the good and not-so-good performers—will inevitably leave the organization, it serves the interest of employers to make these terminations as smooth and respectful as possible. That reduces the chances of disengaged employees ghosting their employers or loudly announcing their displeasure to prospective customers, to job candidates, or to anyone else who will listen.


What Is the Interactive Process, Anyway?

The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate the disabilities of their employees and to engage in an interactive process when a request for accommodation is made. What is the interactive process?

The Equal Employment Opportunity Commission describes it this way: the employee and the employer “communicate with each other about the request, the precise nature of the problem that is generating the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting an individual’s needs.”

The employer’s part in this process entails some specific steps. When you go through the interactive process with an employee, we recommend you do each of the following:

  1. Analyze the specific job position involved to determine its essential job functions. These are the tasks of the job that must be done by whoever holds the position. A chef must be able to cook. An editor must be able to proofread, correct, and revise text. The essential job functions are used to determine whether an accommodation can be made. If an employee cannot do one or more of the essential job functions, even with accommodation, then the employer is not required to make an accommodation.
  2. Request medical information and supporting documentation as needed and as appropriate. You don’t need to take the employee’s word that they have a disability or that an accommodation is needed. However, be careful not to request or require more than is reasonable. For instance, a note from a licensed physician that says an employee suffers from anxiety and may need additional break time to implement coping mechanisms should be sufficient. You should not request the details of his diagnosis, past mental health history, exactly what those coping mechanisms might be, etc.
  3. Talk with the employee about the challenges they have in the workplace and the way these challenges may affect their work performance. This conversation will help you determine what specific solutions might work for the employee.
  4. Explore with the employee a range of potential reasonable accommodations to help minimize or remove the identified challenges.
  5. Assess the effectiveness of each agreed-upon reasonable accommodation. The accommodations you set up today might not always work well for the employee or the company. It’s okay to reassess later whether an accommodation remains reasonable given changed circumstances. Keep in mind that not every accommodation suggested may be reasonable; employers do not have to provide accommodations that would create an undue hardship for them. However, “undue hardship” is a high bar to meet and should not be relied upon in most circumstances.
  6. Communicate regularly with the employee throughout the process and once accommodations are in place. Regular communication demonstrates good faith on your part and shows the employee you take their challenges and concerns seriously. Document these conversations.

As you can see, the interactive process is simply an ongoing conversation with an employee who has requested a reasonable accommodation under the ADA. Together, you and the employee look at what can be done to accommodate them so the essential functions of the job get done, and you keep the lines of communication open to ensure maximum productivity going forward.


May 1, 2019

What You Need to Know Before Disciplining or Terminating an Employee

The prospect of corrective action or termination makes a lot of managers nervous. That’s understandable. For employees, being disciplined or losing their job can be anything from moderately embarrassing to financially devastating, but it’s rarely a happy occasion. For the employers, these actions always come with some risk, and there are plenty of legal danger zones an employer can end up in if corrective action isn’t done properly.Here are some tips from our HR Pros to help you avoid these pitfalls and make corrective action productive for everyone:

  1. Everyone in the organization, but especially those responsible for disciplining or terminating employees, should understand exactly what the organization’s policies are. When policies aren’t clear or people don’t understand them, their enforcement can become inconsistent and subject to bias. In these circumstances, discipline and termination will appear unfair. Worse, they may open the organization up to costly discrimination claims.
  2. Managers should follow consistent disciplinary practices. Management meetings are a good time for the leadership team to make sure they’re using the same practices for discipline and termination. Inconsistencies in the organization, as noted above, can lead to allegations of discrimination.
  3. Investigate allegations before you act on them. Sometimes, in a rush to correct wrongdoing or poor performance, a manager will discipline an employee after hearing only one side of the story. For example, a restaurant customer complains about rude service, and the server is immediately terminated and given no chance to explain what happened from their point of view. Such adverse actions tell employees they can be penalized even if they do nothing wrong, causing them to feel resentment, fear, and distrust. And the manager can find themselves in an awkward termination meeting if the terminated employee can prove then and there that they didn’t do what they were accused of doing.
  4. Written warnings are best drafted by the manager and reviewed by HR. An employee’s manager often has firsthand knowledge of an infraction or unacceptable performance, so they’re in the best position to draft the written warning. HR can collaborate with the manager by reviewing the warning, ensuring that it is factual, unemotional, thorough, clear, tied to a company policy, and consistent with how others have been given written warnings previously.
  5. Corrective action is best done by the employee’s direct manager. When corrective action is delivered by the manager, it tells the employee that the manager is invested in the employee’s success and is willing to help the employee improve. Leaving corrective action to HR tells employees that they’re “someone else’s problem” and that their manager may not be fully vested in the company’s policies and practices. It also creates an unnecessarily adversarial relationship between employees and HR, which can undermine HR’s ability to make positive, company-wide changes.
  6. During a disciplinary meeting, a witness can help document what was said and done as well as provide logistical details. Not every disciplinary meeting needs a witness, though, especially if the issue is a minor one, or it’s a first conversation about performance issues. In these cases, whether to have a witness present can be left to each manager’s discretion. A witness is more useful for a meeting that is likely to escalate, either due to the nature of the issue or discipline, or the temper of the employee.
  7. Fairness and courtesy can go a long way, even when termination is necessary. No termination meeting will be pleasant, but they’re often more unpleasant than they need to be. Good practices here include being honest and clear about the reason for termination; not relying on being an “at will” employer to avoid telling the employee why they’re being let go (they’ll generally assume the worst), and holding the meeting privately and at the end of the day so that the employee can clean out their desk and exit the workplace without an audience. Whatever a manager can do to help the employee leave with their dignity intact will be helpful in preventing future issues with the now-former employee.
  8. Discipline and termination can be in the employee’s best interest—allowing bad behavior and poor performance to go on unaddressed does them no favors. If an employee isn’t doing a good job and is unable or unwilling to improve, they’re not helping the employer, their teammates, or themselves by staying in the organization. Chances are good that they’d be more successful and happier doing something else for someone else. And that’s okay!

 

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April 2, 2019

How to Make Meetings with Remote Employees Effective

Even with video conferencing and messaging apps, fully involving remote employees in team and company meetings remains a challenge. There may be no replacing the experience of being physically in the room, but you can take steps to make these meetings more productive and inclusive.

The most important thing to remember when “meeting” with remote employees is that you can’t conduct the meeting in the same way as you normally do when everyone is physically present. You have to find a way to replace the advantages that close proximity has, especially the ease of reading body language and picking up social cues. These, unfortunately, do not translate well over the screen or the phone. So, what can you do?

What remote employees need to fully participate in meetings is space and time to speak. You can provide this space and time in a few ways. First, ask the physically present participants to pause for a second before jumping into the conversation. This gives remote employees time to get a word in, plus it helps counter any time delays caused by the conferencing technology. Second, whoever is leading the meeting should regularly invite remote employees to add anything if they have something to say, preferably before moving on in the agenda. Third, when possible, have a remote employee lead the meeting or a section on the agenda. This focuses attention on the remote speakers and can help remind everyone that the meeting isn’t just happening in the physical room. Finally, if your remote employees are located in the same workspace, occasionally setting their site as the physical meeting space can help your non-remote employees get a feel for the challenges of being remote during a meeting.

Some preliminary work before the meeting can also help make the meeting itself more efficient. First, test any systems ahead of time so that they’re working for everyone when the meeting starts. Second, email the agenda out so everyone knows what to expect. Third, assign someone in the meeting room to be the contact person that remote employees can email or message if they have questions, concerns, or issues.

“The most important thing to remember when ‘meeting’ with remote employees is that you can’t conduct the meeting in the same way as you normally do when everyone is physically present.”

After the meeting, check in with any remote employees and ask them to be candid about their experience. What worked well and what could be improved? See what you can do to accommodate them in the next meeting.

You may not be able to fully replicate the experience of physically being in the room, but taking these steps can enable remote employees to feel more involved and make the meeting itself run more smoothly.


February 1, 2019

There’s a Loneliness Epidemic in the Workplace – Here’s How Employers Can Help

Right now, in workplaces across the country, people are going about their jobs, seemingly content, but deep down feeling the ache of loneliness. They aren’t necessarily working alone or all by themselves with no one to talk to. They may be chatting amicably with customers on the phone or in person. Or they may work from home, but are in frequent communication with their coworkers through digital channels. Whatever the case, these lonely workers feel isolated and unnoticed.

Given all the means that people have at their disposal to connect with each other in the workplace – face-to-face meetings, email, social media, messaging apps – one might have expected loneliness in the workplace to be diminishing. Unfortunately, the number of communication channels hasn’t helped. Although technology may have increased the quantity of connections people have in the workplace, it hasn’t improved the quality of those connections.

Why It Matters at Work
The rate of American adults who report suffering from loneliness has doubled since the 1980s – it’s now at about 40%. Vivek Murphy, who served as Surgeon General from 2014 to 2017, has called loneliness an epidemic, and the negative health effects of loneliness explain why: it can lead to reduced life expectancy, limited performance and creativity, and impaired reasoning. According to Harvard Business Review, lonelier workers “perform more poorly, quit more often, and feel less satisfied with their jobs.” They report fewer promotions, more job switching, and lower job satisfaction.

To make matters worse, lonely employees are sometimes perceived to be less approachable, less committed, and less trustworthy. In turn, these perceived qualities obstruct communication, collaboration, and teamwork. A person’s loneliness can lead to misperceptions and misjudgments that ripple through a workplace – it’s a classic downward spiral.

But there is some good news! According to Gallup, people who have a best friend at work “are seven times as likely to be engaged in their jobs, are better at engaging customers, produce higher quality work, have higher well-being, and are less likely to get injured on the job.” In contrast, “those without a best friend in the workplace have just a 1 in 12 chance of being engaged.” Gallup found that the single best predictor of higher well-being and engagement was “not what people are doing – but who they are with.” The takeaway for employers: “small increases in social cohesiveness lead to large gains in production.”

What Employers Can Do
Employers can’t take away the loneliness employees feel or make friends for them, but they can have a positive impact by helping to make it easier for lonely employees to be noticed and find friends at work. Here are four things employers can do:

  1. Realize that people in your organization may be lonely. Loneliness doesn’t always manifest itself in ways that you’re likely to notice amid the hustle and bustle of your daily activities. You can, however, get a sense for whether loneliness is an issue by observing whether some (or many) employees seldom socialize with others or don’t seem to have close friends at work. Remember, though, that not everyone socializes the same way, and not everyone may want a friend at work. As an employer it’s not your job to ensure that everyone has a work buddy, but you should provide an environment where building friendships is possible.
  2. Make room for friendships to grow. Friendships take time and energy to develop and maintain, and employees will only be able to make friends if they have time and energy to do so. If they’re overwhelmed with responsibilities from the start of the work day until its end, they won’t be able to make meaningful connections at work. Step one for many employers will be to ensure that work is not taking place at such a break-neck pace that employees barely have time to get a cup of coffee, let alone have a meaningful conversation with a coworker. This is a good practice not only because helping employees foster friendships is the right thing to do, but also because it will reduce turnover and increase engagement. Breaks have also been shown, time and again, to increase overall productivity.
  3. Setting aside break areas away from where people need to focus on work can be helpful, as can encouraging a culture in which employees know it’s fine, within limits, to socialize with one another during the work day. You can also look for ways to bring people from different teams together, such as multi-team lunches or as part of multi-team collaborations; employees might find that there are people on other teams with whom they feel a real connection.
  4. Create traditions for people to get to know one another. These are especially important for new employees who don’t yet know anyone. Obviously, you will introduce new employees to the team, but do so over a span of time and make sure there are follow-up opportunities for people to build on these initial introductions. Sending new employees to lunch or happy hour with just two or three others is a great way to help them make some quick connections that are deeper than a handshake and exchange of job titles.Mentorship programs, monthly social events, and group volunteer efforts are other ways to get people talking outside their typical work environment. But these opportunities need to arise often enough that employees can get beyond small talk and start to feel like they actually know one another.
  5. Offer an employee assistance program. Feelings of loneliness often go hand-in-hand with depression, anxiety, and stress. Creating space to make friends at work won’t necessarily solve these deeper issues, but you may be able to provide resources to help employees improve their mental state overall. Employee Assistance Programs (EAPs) give employees access to expert, confidential assistance for a range of issues such as mental health conditions, substance abuse, relationship troubles, and financial problems. These services are provided through an EAP Provider, which connects employees with the appropriate resources and professionals.

The workplace can be a lonely place, and when it is, people and productivity can suffer. By raising awareness about workplace loneliness and taking steps to create an environment in which people can easily make friends, employers can help bring the benefits of friendship to their employees and to themselves.


January 25, 2019

Reminder: OSHA 300A Forms Must Be Posted by February 1

The Occupational Safety and Health Administration (OSHA) mandates that all employers who are required to maintain the OSHA 300 Log of Work-Related Injuries and Illnesses post a summary of the previous year’s log between February 1st and April 30th each year, even if no incidents occurred in the preceding calendar year. The summary (OSHA Form 300A) must be certified by a company executive and posted in a conspicuous location where notices to employees are customarily posted.

All employers who had more than ten employees at any point during the last calendar year are covered by this requirement unless they qualify as part of an exempt low-risk industry. A full list of the industries that are exempt from OSHA routine recordkeeping requirements (including posting Form 300A) can be found in the Guides section of the HR Support Center by searching “partially exempt industries.” It’s called “OSHA Fact Sheet: Reporting and Recordkeeping Rule and Partially Exempt Industries List.”

The OSHA Log of Work-Related Injuries and Illnesses (Form 300), Summary (Form 300A) and Instructions can be found in the Forms section of the HR Support Center by searching for “OSHA Form 300.” It’s called “OSHA Form 300, 300A, 301, and Instructions.”

Electronic submission requirements:
OSHA-covered employers with 250 or more employees, and those in certain high-risk industries with 20-249 employees, must electronically report their Calendar Year 2018 Form 300A data by March 2, 2019. Reporting must be done through the online Injury Tracking Application (ITA).

All affected employers must submit injury and illness data in the ITA online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.

Additional information, covered-employer criteria, FAQs, and the Injury Tracking Application can be found on OSHA’s site, here.

New Final Rule Regarding Electronic Submission of Form 300 and Form 301
Yesterday, OSHA published a Final Rule to amend its recordkeeping regulations to remove the requirement to electronically submit information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees that are required to routinely keep injury and illness records. These requirements were never enforced, but are now officially off the books. These employers are still required to submit Form 300A information electronically, as described above.


November 1, 2018

Reducing Workplace Chatter

Does your workplace have too much chit-chat? A lot of employers are in the same boat, and they want to find the right balance between forbidding chit-chat and permitting too much of it. The right amount likely depends on the nature of the workplace and how disruptive the talking is, but there are some general guidelines you can follow:

  • Rather than telling employees exactly how much time they can spend having non-work conversations in a day, remind them that frequent chit-chat can make it difficult for people to work and that everyone should be respectful of others’ time and need to focus.
  • Let employees know that in most cases, personal conversations longer than a few minutes should be saved for breaks and held away from work areas.
  • As long as people are getting their jobs done and aren’t distracting other by talking, then the chit-chat probably isn’t excessive and isn’t cause for concern.

October 26, 2018

Voting Leave Notice Must Be Posted

California requires employers to post a notice informing employees of their right to voting leave. Employers should post the notice in a conspicuous location at least 10 days before a state or national election. The notice covers the basic voting leave rights for employees, which include the following:

  • Employees are eligible for paid time off for voting only if they do not have sufficient time outside of working hours to vote;
  • Employees may take as much time as they need, but they’ll be paid for a maximum of two hours;
  • An employer may require employees to give advance notice that they will need to take time off for voting;
  • An employer may require employees to take this time off at the beginning or end of their shift.

The notice can be downloaded here.


October 1, 2018

How to Increase Diversity in Your Recruiting and Hiring Process

The recruiting and hiring process is supposed to select the best candidates while deterring unqualified job seekers from applying or advancing. All too often, however, the process creates obstacles or disadvantages for qualified candidates due to their membership in a protected class or minority group. Even a well-meaning process be discriminatory. Below are some actions you can take to eliminate discriminatory practices and increase diversity.

Reduce barriers. Consider your recruiting and hiring process from a candidate’s perspective, specifically from an under-represented class member’s perspective. Would a transgender person have a fair chance in the hiring process? What about someone with a disability or someone whose first language isn’t English? What obstacles might these people face when applying and going through the resume review, interview, and job offer stages? Are there difficulties some people would face that others would not? If so, do what you can to reduce or remove unnecessary barriers to entry.

Address biases. Consider what biases your company may have when screening candidates for employment. What about while interviewing? What unconscious biases might be affecting who gets interviewed or receives a job offer? Are individuals from some groups assumed to be coachable, but individuals from other groups assumed not to be? If you’re not sure how to assess your biases, check out the articles on bias linked below. You can also learn how to recognize interview biases by listening to the latest 2-Minute HR on the HR Support Center.

Post ads strategically. We tend to network with people who are like us, so social networks and employee referral programs can easily become homogeneous and hamper diversity efforts. Fortunately, there are lot of job boards designed to help individuals from minority and underrepresented groups find work. Try posting in these places.

Focus interviews on obtaining factual, job-related information. This is especially important when taking notes. Avoid documenting “gut feelings,” personal impressions, or narratives. Stick to job-related facts. Doing this will help to prevent personal bias from seeping into the interview.

Challenge hiring decisions. Challenge your managers and their hiring decisions, pushing them to further define what the “best” candidate would look like, both before and after the interview. When doing so, encourage and remind them to focus on capability—who is best qualified for the position. It’s important that candidates meet your expectations, but it’s also important that those expectations are legitimately job-related. For example, requiring clear verbal communications skills might be necessary for a customer-facing position, but it could be discriminatory if it prevented someone with a thick accent or anxiety about public speaking from being offered a position they’re perfectly qualified for.

Seek culture contributions. Look for candidates who can add or contribute to your company’s culture, as opposed to those that “fit” within it. Too often, when employers and managers hire for culture fit, they’re left with little diversity in the workplace.

When companies hire for fit, they end up cloning the same skills and experience repeatedly. The very nature of doing this means a company is favoring similarity and weeding out diversity. Instead, examine your company culture to determine what’s missing, and hire people who can enrich it, who will contribute positively to your culture.

Create an inclusive workplace. An inclusive workplace is one where differences among employees’ thoughts, opinions, and suggestions are valued—especially when they deviate from the norm. It’s also an environment where employees feel safe to be themselves and share information without fear of retaliation. When assessing your workplace for whether you offer an inclusive experience, consider how new ideas are responded to during meetings. Are they welcomed and valued, or are they quickly stifled because they aren’t in line with how things are normally done? Ask employees whether they feel the workplace is inclusive and about any experiences they’ve had, positive or negative.

These recommendations work best when you incorporate them into your recruiting and hiring policies and practices. They won’t be effective if they are just done once. Keep hiring managers and others involved in recruitment and hiring trained on your policies, emphasize the importance of a diverse workplace, and continually assess the process to ensure that everyone is following it.


April 2, 2018

HR Tip of the Month

Messy shared spaces, like bathrooms and break rooms, can be a serious sore spot in any office. Although we’d like to think that adults can be trusted to clean up their own messes, expectations and reality don’t always jive. You may have even found yourself posting notes on the walls with such over-the-top messages as, “Dirty dishes in the sink will be thrown away at the end of the day.” Although the nuclear option cannot always be avoided, ideally, we’d like to get ahead of these problems before they start (or at least before they blow up).

Scheduled reminders—like a monthly email or posting on the fridge—can be a good way to communicate your expectations for everyone without looking like you are reacting to a particular person or situation. It might also make sense to assign certain tasks on a rotating basis. For instance, all employees might be assigned copy room straightening or fridge clean-out duties. Depending on the size of your organization, this might mean that an employee is only asked to do this task every few years.

However you decide to tackle the issue, focus on regularity and shared responsibility. And if your expectations have been communicated clearly, hold employees responsible for their actions rather than taking a passive-aggressive (or simply aggressive) approach to solving the problem.


March 23, 2018

Reminder: EEO-1 Is Due by March 31

The Equal Employment Opportunity Commission (EEOC) requires certain employers to submit a report categorizing their employees by race or ethnicity, gender, and job category. This demographic survey, called the EEO-1, is due by March 31. All employers with 100 or more employees must file the report.

Employers also must file if the organization is any of the following:

  • Owned by or affiliated with another company and the entire enterprise has 100 or more employees
  • A federal government prime contractor or first-tier subcontractor with 50 or more employees and with a contract or subcontract amounting to $50,000 or more
  • Serving as a depository of government funds in any amount
  • A financial institution that is an issuing and paying agent for US Savings Bonds and Notes

If required to file, employers should follow these guidelines:

  • Use employment data from one pay period in October, November, or December of 2017.
  • For a single-establishment company, submit only one EEO-1 data report. For a multi-establishment company, submit a separate report for each location.
  • Identify the race or ethnicity of employees based on how they identify themselves. If they decline to self-identify, then use employment records or visual observation.
  • Include both full-time and part-time employees.
  • Include employees who telecommute in the survey for the location to which they report.

The EEOC would prefer that employers file online. When doing so, don’t forget to click the “certify report” button; otherwise, the EEOC will not receive your report. Go here to file, and find the EEOC’s FAQs on filing here.


March 2, 2018

IRS Withholding Calculator and Form W-4 Announced

The IRS announced the release of the adjusted W-4 Form and revised tax calculator this week; see attached provided in both English and Spanish.

The W4 changes were made to adhere to the Tax Cuts and Jobs Act by removing personal exemptions, increasing the child tax credit, limiting or discontinuing certain deductions and changing the tax rates and brackets.  The 2018 W-4 Withholding Allowance Certificate is a 4 page document that the employee completes. It is the employer’s responsibility to make these 2018 W-4 Withholding Certificates available to employees.

The W-4 Calculator can be found on www.irs.gov/W4App.

  • It is highly recommended that every employee use the calculator to be assured that they are not over/under withheld in Federal taxes.
  • The calculator will be more accurate than just the paper withholding documents.
  • The withholding calculator is easy to access and very user-friendly.

February 27, 2018

Federal Law Alert

Second Circuit Rules Sexual Orientation is Protected by Title VII

Yesterday the Second Circuit Court of Appeals became the second federal appellate court to rule that under Title VII of the Civil Rights Act of 1964, the word sex includes sexual orientation. The first was the Seventh Circuit, which we reported on last April.

The Second Circuit Court’s ruling yesterday affects only New York, Vermont, and Connecticut. All three of these states already prohibit discrimination in employment because of sexual orientation, so the ruling does not have a significant impact on employers there. It does, however, ensure that it is possible for employees who feel they have been discriminated against based on sexual orientation to sue under both state and federal law.

Between 1979 and 2012, most of the circuit courts of appeal ruled that the term sex in Title VII did not include sexual orientation, including the Second Circuit in 2005. But in Monday’s decision, the court acknowledged that legal doctrine evolves. The court reasoned that although Congress may not have contemplated that discrimination “because of sex” would include sexual orientation when it drafted Title VII, that fact need not limit the court’s current interpretation of the statute. The court also pointed to the Equal Employment Opportunity Commission’s position (held since 2015) that sex includes sexual orientation as support for its ruling.

Although circuit courts of appeal often try to align their rulings with the decisions of the other circuits, and most circuits still do not currently recognize sexual orientation as part of sex, the two most recent decisions may indicate a shift in perspective and encourage other circuits to follow suit, overruling their past decisions in favor of a broader meaning for the word sex. The circuits’ conflicting decisions also make it more likely that the Supreme Court will accept a case on this issue soon.


January 19, 2018

Federal Law Alert

Reminder: OSHA 300A Forms Must Be Posted by February 1

The Occupational Safety and Health Administration (OSHA) mandates that all employers with more than 10 employees—except those in exempt low-risk industries—maintain a record of work-related injuries and illnesses. Those who are required to maintain these records should use OSHA’s Form 300: Log of Work-Related Injuries and Illnesses or an equivalent state-specific form.

Those same employers must then post OSHA’s Form 300A: Summary of Work-Related Injuries and Illnesses each year between February 1 and April 30. As its name implies, Form 300A summarizes (and sanitizes) the information logged on Form 300.

OSHA Form 300A must be certified by a company executive and posted in a conspicuous location where notices to employees are customarily posted. The notice must be posted even if there were no workplace-related injuries or illnesses.

The OSHA Form 300 and 300A, as well as detailed instructions, can be found by searching for OSHA Form 300 in the HR Support Center and selecting “OSHA Form 300, 300A, 301, and Instructions” from the Forms tab.

A full list of the industries exempt from OSHA recordkeeping requirements can be found by searching OSHA Fact Sheet in the HR Support Center and selecting “OSHA Fact Sheet: Reporting and Recordkeeping Rule and Partially Exempt Industries List” from the Guides tab.

In addition to these internal recordkeeping requirements, certain employers with 20 or more employees must submit their OSHA 300A form online by July 1. The website for submission is OSHA’s Injury Tracking Application (ITA), which can be found here.

Our HR Pros are here to help. Do you have any questions about this eAlert?  Contact us over the phone at: (877) 880-4772. Online via your HR Support Center. Not a HR Support Center customer?  Click here to learn more about this service.


January 9, 2018

DOL Adopts New Unpaid Intern Test

Last Friday the Department of Labor (DOL) adopted a new test for unpaid interns. Employers should use this test—called the primary beneficiary test—when determining if a worker can be properly classified as an unpaid intern or if they need to be classified as an employee and paid minimum wage and overtime. The test adopted by the DOL has already been in use in four federal appellate courts, most recently the Ninth Circuit Court of Appeals. The DOL’s switch to the primary beneficiary test creates a nationwide standard.

Balancing v. All-or-Nothing

Previously, the DOL was using a six-question all-or-nothing test. An employer needed to be able to say “yes, the internship does that” to all six questions or else classify the worker as an employee. The new test is a balancing (or factors) test and has seven questions. No single question will disqualify the worker from being classified as an unpaid intern. Instead, the employer may look at the answers as a whole.

The New Questions

The new questions overlap significantly with the old questions. The major element missing from the new test is a focus on whether the intern is providing a tangible benefit to the employer. The old test indicated that the employer should receive little to no benefit from the services of an unpaid intern, with the exception of goodwill and a qualified future applicant. The new test doesn’t ask if the employer is receiving a benefit.

In place of questions about whether the employer receives any benefits, the new test places more emphasis on the internship being academically focused. Only one of six questions in the old test asked about the training and educational aspects of the job, whereas four of seven do in the new test. Employers are free to look at factors outside of these seven, but should be careful about stretching to find new questions if these seven lead to an answer of “paid employee.”

Under the primary beneficiary test, employers should consider the following:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

January 2, 2018

How to Reduce Absenteeism

Taking time away from work is good for the health and morale of employees. When they can rest during an illness, recuperate after an injury, or tend to affairs in their personal lives, they’re better able to focus at work and engage in the tasks at hand. Too many absences, however, can be costly for employers and frustrating for other employees who have to pick up the slack.

A lot of absences may be sign of absenteeism, which occurs when employees skip work for no good reason. You may not be able to prevent the illnesses, injuries, or family emergencies that keep employees from coming to work, but you can and should do something about absenteeism. Fortunately, there are a few steps you can take.

The first step to reduce absenteeism is to make sure you have a clear attendance policy. This policy should state your expectations for attendance and the procedures for time-off requests—as well as the possible consequences for employees who violate the policy. Having and following a clearly-written attendance policy makes it easier to hold people accountable to it.

The second step is to make sure you’re following all applicable leave laws. If your company is subject to the Family and Medical Leave Act, for example, you may be required to provide job-protected leave to an employee who needs a leave of absence to seek care for themselves or a family member. A number of states and municipalities have sick leave laws that may guarantee employees a certain number of sick days per year. Make sure you give employees the option to take all the time off to which they’re legally entitled. You can certainly give employees more time off than what the law requires, and allowing for more expected absences may help reduce the number of unexpected ones. Just make sure you offer this leave in a non-discriminatory manner, consistent with your policy.

Third, use discipline for policy violations. If an employee has been missing work without a legitimate reason and in violation of your policy, you should discipline them. Depending on the severity of the absenteeism, you might start with an oral or written warning and then move up from there. Reoccurring absenteeism could be grounds for termination if you’ve given the employee fair warning and they haven’t improved.

The fourth step to reducing absenteeism is to create a workplace where people want to be. If absenteeism is widespread or higher than you find acceptable, assess the management styles and employee interactions in your workplace. Are people generally happy? Do they get along? Are there any issues of concern, such as bullying? Do employees have opportunities to get to know one another and form collaborative and supportive relationships? Do they feel supported and valued by management? You can stop attendance problems before they start by building a workplace where people are inspired to work hard, do well, and celebrate success.


December 1, 2017

Preventing Sexual Harassment in the Workplace

Last year, nearly 27,000 charges of sexual harassment were filed with the Equal Employment Opportunity Commission (EEOC). This number doesn’t include charges filed with state and local agencies or situations where employees went directly to an attorney, and many employees who are victims of sexual harassment or are affected by it never report the incidents at all.

Victims and witnesses of harassment often refrain from reporting because the harasser has the power to retaliate or because the organization has not set up adequate channels for reporting. In other cases, victims report the harassment, but nothing is done about it. The harassment is excused, and the complaints are rebuffed. Word gets around that the organization tolerates harassment, and people cease reporting it internally. They either keep quiet, file charges with a governmental agency, or seek out an attorney.

None of these outcomes is good for employers or for the people they employ. If litigation ensues, harassment can cost employers hundreds of thousands of dollars—millions even, if harassment is pervasive in the company culture. And when harassment continues unabated, victims suffer physically and psychologically, and often see their careers stifled.

Needless to say, the workplace should be a safe and secure place, and it’s the employer’s responsibility to make it that way. No one can prevent all harassment from happening, but employers can and should do everything in their power to prevent harassment and appropriately respond when it occurs. Training employees on what constitutes harassment and how to respond to it is a good and necessary first step, but employers also need to establish multiple options for reporting, investigate allegations promptly and thoroughly, and take appropriate steps to discipline violators.

The EEOC recommends these additional preventive measures:

  • Make an organizational commitment to diversity, inclusion, and respect—and establish policies and procedures to hold people accountable to that commitment.
  • Empower those who are responsible for responding to allegations of harassment and preventing harassment from occurring.
  • Establish a sense of urgency and seriousness about prevention by spending appropriate amounts of time and money on training or other prevention and response activities.
  • Survey employees on whether they’re currently being harassed or know of harassment taking place.
  • Avoid rewarding managers for minimum complaints on their team, as doing so could incentivize the suppression of reporting.
  • Protect people from retaliation.
  • Assess risk factors.
  • Assess preventative measures already in place to ensure they are effective.
  • Clarify what behavior is prohibited.
  • Use discipline proportional to the offense (sexual assault and an offhand remark shouldn’t necessarily have the same consequence).

For any of these measures to work, employees need to know that if they report harassment, their report will be taken seriously, they’ll be protected from retaliation, and the harassment will stop. In short, they need to trust their employer. Consequently, anything an employer does to foster distrust will make anti-harassment measures much less effective. When it comes to preventing harassment, employers cannot say one thing and do another. Honesty and accountability are key. Trust can take time to build, but it can be lost in a moment.


October 20, 2017

California Law Update: California Bans Salary History Inquiries

Beginning January 1, 2018, California employers will no longer be able to ask applicants about their current or previous salary or hourly rate of pay, whether on an employment application or during the interview process. Additionally, employers must provide an applicant with the pay scale for the position upon reasonable request.

If an employer is aware or becomes aware of an applicant’s salary history, that information should not be used to determine the rate of pay offered, unless the information was volunteered by the applicant without any kind of prompting. In accordance with the California Equal Pay Act (which is already in effect), even if salary history is provided without prompting, it must not be the only basis for a disparity in pay between employees.

The good news is that if you’ve been using the Employment Application currently available in the HR Support Center, your application form is already in compliance. And if you haven’t been using it, it’s easy to download now. Just use the search bar in the HR Support Center and type in Application Form. The document is available in both English and Spanish.


September 15, 2017

Reminder: Employers Must Begin Using the New I-9 Form on Monday, September 18

Beginning Monday, September 18, employers must use the revised Form I-9 for all new employees. This new version of the form has the revision date of 7/17/17. The I-9 form can be found here or on the HR Support Center.

You can visit USCIS’s I-9 Central or the News Desk section of the Support Center to learn more about the changes.


September 6, 2017

Employment Law Updates

EEO-1 Pay Data Reporting Suspended Indefinitely

Last week, the Office of Management and Budget put an indefinite hold on the pay data collection portion of the EEO-1 form that was revised on September 29, 2016. The version in effect prior to September 2016, which collects data on race, ethnicity, and gender by occupational category, remains in effect.

The EEO-1 form only applies to private employers with 100 or more employees and public contractors with 50 or more employees. Affected employers should plan to submit the earlier-approved EEO-1 by the previously-set filing date of March 2018.

Overtime Rule Doubling Minimum Salary for While Collar Workers Officially Dead

On August 29th, Judge Mazzant in the Eastern District of Texas issued his ruling on the Department of Labor’s overtime rule changes. The rules, which were slated to go into effect on December 1, 2016, have been on hold since he issued an injunction last November. As anticipated, the Judge ruled in favor of the Plaintiffs, finding that the DOL had overstepped its authority by making the new minimum salary so high.

The DOL will not be appealing the decision, but labor or employees’ rights groups could theoretically take their place in the lawsuit. However, the DOL has said they would not enforce the 2016 rules, so any further action toward implementation will ultimately be ineffective.

The DOL has, however, put out a Request For Information (RFI), seeking public comment that will presumably help it formulate an all-new set of rule changes. To view the RFI in full and leave a comment, go here.

Fair Work Week Legislation: Is Predictive Scheduling the Future?

The state of Oregon and New York City have joined San Francisco, Emeryville, and Seattle in passing predictive scheduling laws, which require certain employers to give employees a minimum amount of advance notice of their work schedule.

A number of other states and municipalities have considered similar regulations, and we anticipate that more laws like these will be offered up in state legislatures and in city councils across the nation. Employers in Oregon or New York City can find the most essential requirements for their location below.

New York City – Effective November 26, 2017
Retail employers with 20 or more employees will be required to do the following:

  • Provide employees with a written work schedule at least 72 hours in advance of the first shift on the schedule.
  • Give employees at least 72 hours’ notice before scheduling or cancelling a shift; employees who are interested in more work may consent in writing to the scheduling of a new shift.
  • Directly notify employees of any schedule changes (employees cannot be expected to come in or call in just to check for changes).
  • Keep records of work schedules for the previous three years and provide them upon request.

Fast food establishments that are part of a chain (30+ stores nationally, whether franchised or not) are subject to different rules. They must do the following:

  • Provide new employees with written, good faith estimates of their schedule, including dates, times, and locations, for the duration of their employment.
  • Provide employees with a week’s worth of scheduling at least 14 days in advance.
  • Pay a “schedule change premium” of $10 to $75 if schedule changes are made on short notice; the greater the notice, the lesser the premium.
  • Pay employees an extra $100 for “clopening” shifts (a closing shift followed by an opening shift) that are less than 11 hours apart.
  • When looking to fill additional shifts, offer the work to current employees before transferring employees from other locations or hiring new workers.

Oregon State – Effective January 1, 2018
Employers who provide services in retail, hospitality, or food service, and have 500 or more employees worldwide, will be required to do the following for their workers in Oregon:

  • Provide new employees with written, good faith estimates of their schedule in advance of their first day of employment.
  • Provide 10-hour breaks between shifts; if 10 hours are not provided, the portion of the shift that was worked before the 10 hours were up must be paid at 1.5x the employee’s regular rate of pay.
  • Give employees their schedules in writing at least 7 days in advance (beginning in 2020, 14 days’ notice will be required).
  • Pay a premium if shifts are added, changed, or cancelled without the prescribed notice.

Employers in Oregon and New York City should begin to plan for these laws to take effect. Many employers will need to make drastic changes to the way they formulate and distribute schedules.

Although the laws are clearly intended to reduce last minute schedule changes by imposing penalties and premium pay, some employers may find that they would rather pay the penalty or premium to have the convenience of scheduling “clopening” shifts or making last minute changes. We recommend, however, that employers do the math prior to deciding to just take the financial hit. These penalties are likely to pile up fast, and since employees will no doubt be discussing the changes with one another, it’s unlikely that violations will go unnoticed.


July 14, 2017

A New I-9 Form Will Be Released on July 17

The United States Citizenship and Immigration Services (USCIS) will release a new Form I-9, Employment Eligibility Verification, on Monday, July 17. The new Form I-9 will be available on the HR Support Center shortly after it is released.

Employers will be able to use this revised version immediately, but may continue using the Form I-9 with a revision date of 11/14/16 through September 17, 2017. Beginning September 18, employers must use the revised form with a revision date of 07/17/17 for all new employees.

The revisions to the Form I-9 are minor and employers will not need to change their processes.

Revisions to the Form I-9 Instructions:

  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed to its new name, Immigrant and Employee Rights Section.
  • The words “the end of” have been removed from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (Form FS-240) has been added to List C.
  • All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C#2 in List C.
  • All List C documents except the Social Security card have been renumbered.

Employers can visit USCIS’s “I-9 Central” to get more details about the changes.


July 3, 2017

Creating an Engaging Workplace

Most employees are not engaged at work—70% according to Gallup. This is no new trend. The combined number of unengaged and actively disengaged employees remains high from year to year. Poor engagement results in less productivity, less creativity, higher absenteeism, and higher turnover.

Employee engagement is basically a measure of your employees’ commitment to their work and the success of your organization. Think of it as their work ethic within your company. It includes their emotional investment in the work they do for you, but it’s not simply an emotional state. You might have employees who are grumpy and frustrated, yet strive to do their best work and make a difference.

Fortunately, low engagement isn’t inevitable. Some companies have great employee engagement. Their employees consciously and consistently work for the good of their organization. They’re committed, innovative, and driven to help their co-workers and organization thrive.

You can’t force an employee to be engaged—engagement is ultimately their choice. But you can create working conditions that inspire and empower employees to make that choice. What you want is an engaging culture—a workplace culture that prompts and rewards engagement. Here’s how you create it:

  • Define the specific purpose of your organization. What do you do? What’s your style? How are you different from the competition? Employees can’t be engaged unless they have something to be engaged in. Engagement needs direction, focus. And employees need to know how their role contributes to the organization’s purpose.
  • Commit to the success of your employees. If you want employees to work for your organization’s success, you must work for theirs. Coach them. Train them. Help them develop their skills and abilities. They’ll see that you care about their present and future success, and they’ll know that you trust them. And knowing you’re committed to them, they’ll be more committed to you.
  • Recognize employees who go above and beyond. In a culture of engagement, just getting the job done isn’t enough. Encourage extra effort by rewarding it. Formal recognition programs are a great way to do this. And by recognizing employees for their efforts, you show them that their work is valued and meaningful.
  • Encourage criticism, feedback, and innovation. Every organization could use improvement. Solicit your employees’ ideas. Be open to their suggestions. By giving your employees a say in the organization’s operations and working conditions, you provide them with a sense of ownership. Policies, procedures, and practices shouldn’t all be dictated from above.
  • Allow for a healthy work-life balance. Your employees have other commitment they need to attend to. Give them the time to see to those commitments and have a life outside of work, and you’ll get more from them when they’re on the job.

hr tips


June 28, 2017

California Law Update

Minimum Wage Increases

Seven municipalities in California have passed minimum wages that are higher than the state rate and will go into effect or increase on July 1, 2017.

Emeryville

For employers with 56 or more employees: increase from $14.82 to $15.20 per hour

For employers with 55 or fewer employees: increase from $13.00 to $14.00 per hour

Los Angeles City and unincorporated areas of LA County

For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour

Malibu

For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour

Pasadena

For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour

San Francisco

Increase from $13.00 to $14.00 per hour
San Leandro

Increase from $10.00 to $12.00 per hour
Santa Monica

For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour

Domestic Violence Victim Leave Notice

The California Department of Industrial Relations recently released a new notice regarding California’s Domestic Violence Leave Law. Employers with 25 or more employees must provide this notice to all new hires (as part of a new hire packet is acceptable) and to any employee upon request. The notice is available for download on the HR Support Center by searching California Domestic Violence Notice.

Expanded Protections for Transgender Employees

Under the Fair Employment and Housing Act (FEHA), California already protects transgender employees from employment discrimination with respect to hiring, firing, and other terms and conditions of employment. New regulations going into effect July 1 extend those protections by requiring that employers take affirmative steps to acknowledge and respect an employee’s gender identity. Here are the key provisions of the new regulations:

  1. Names and Pronouns: Employers must use an employee’s preferred name and pronoun and may only use a different name indicated on government-issued identification (e.g., birth certificate or passport) if required to do so by law.
  2. Gender/Sex Inquiries: Employers may not require or request proof of an individual’s sex or gender, gender identity, or gender expression.
  3. Transitioning: The new regulations make it clear that FEHA protections extend to people in transition, perceived to be transitioning, or post-transition. The process of transitioning may include changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams), or undergoing hormone therapy, surgeries, or other medical procedures.
  4. Grooming and Dress: Employers may not enforce dress codes or grooming standards or requirements that conflict with an employee’s gender identity.
  5. Facilities: Employees must be allowed to use the restroom, locker room, or other gendered facility that corresponds with their own gender identity.

There are no required notices, but employers should ensure that all levels of management are familiar with the new regulations and take appropriate steps to comply.

Further Restrictions on Use of Criminal Histories

The Fair Employment and Housing Council released new rules related to the use of criminal histories in employment decisions, which take effect July 1.

The new rules are in line with the guidance that the Equal Employment Opportunity Commission has provided since 2012, and require that employers consider whether their use of criminal histories will have an adverse impact on any protected class. If an applicant or employee claims that the policy or practice of using criminal histories has an adverse impact on a protected class, the employer will have to show that the policy was job-related and consistent with business necessity. This is a test we have long advised employers to use as a best practice (particularly those in California).

Under the new regulations, even if an employer can show job-relatedness and business necessity, it must also prove that there was no less discriminatory policy or practice that could have been used to achieve the same result. Employer policies should also specifically allow for individual assessment, which should consider the nature of the offense, how long ago it took place, and how it relates to the position, if at all.

The new rules also include a notice requirement. Applicants or employees must be notified if an adverse action will be taken because of their criminal history and given an opportunity to address any factual inaccuracies. If a record is shown to be inaccurate, it must not be considered.

As a reminder, the following criminal records should not be considered in California:

  • Arrests that did not result in conviction (unless trial is pending)
  • Detentions that did not result in conviction
  • Sealed records
  • Convictions that have been judicially dismissed, including through expungement
  • Misdemeanor marijuana convictions more than two years old
  • Participation in pre-trial or post-trial diversions programs
  • Proceedings in juvenile court

May 23, 2017

OSHA Delays Electronic Record-Keeping Rule Compliance Date

Back in August, we reported on the new OSHA rule, which would require certain employers to submit injury and illness data electronically. The new reporting requirement was scheduled to go into effect on July 1st of this year. However, OSHA just announced that the requirement has been delayed indefinitely. OSHA has not given the reason for the delay or provided any information about a future effective date. We will provide updates if and when they are available.


May 5, 2017

Legislative Update: Comp Time and Health Care

House Passes Comp Time Bill

On Tuesday, the House passed the Working Families Flexibility Act. The Act would amend the Fair Labor Standards Act to allow employees who work more than 40 hours in a workweek to choose between overtime pay in the applicable pay period, as the law requires now, or time off in the future. That time off in the future (comp time) would be banked at the rate of 1.5 hours for each overtime hour worked. For example, an employee who works 44 hours in a workweek could choose between 4 hours of pay at 1.5x their regular rate, or 6 hours of paid time off in their comp time bank.

If it becomes law, it will only apply to states that do not currently have their own overtime laws requiring premium pay for hours over 40 in a workweek.

In states where comp time becomes legal – if it becomes legal at all – it may be used only if the employee chooses comp time instead of overtime pay. Employers will not be able to make comp time a standard practice or in any way coerce employees to choose comp time instead of overtime wages. Additionally, employees will have the option of asking for payout of their unused comp time at any time with 30 days’ notice, and unused comp time will have to be paid out at the end of each year. Other limits and worker protections are included as well. Employers will not be required to offer a comp time option.

This bill still needs to pass in the Senate – where it faces an uphill battle – and be signed by the President before it becomes a law.

House Passes New Healthcare Bill

Yesterday the House narrowly passed a revised version the American Health Care Act (AHCA) – the GOP’s bill to repeal and replace the Affordable Care Act. The Senate has the next move. Rather than vote on the House bill, the Senate Republicans plan to write their own version and incorporate elements of the House bill into it.

At present, there are no action items for employers. In its current form, the AHCA keeps the employer mandate requiring employers with 50 or more full-time equivalent employees to offer minimum essential coverage. However, it reduces the employer penalties to zero. So, employer reporting requirements would remain in effect, but there would be no financial penalties for failure to offer minimal essential coverage.

If the AHCA becomes law, dropping coverage could still be financially risky according to some experts. Employers who simply drop coverage once the law goes into effect could, under some limited circumstances, potentially face lawsuits for impermissible reduction in benefits under the Employee Retirement Income Security Act (ERISA). There is some debate about this, however.

Much remains unknown at this time. The Congressional Budget Office has yet to assess the House bill, and the Senate version of the bill could turn out to be very different, in which case the differences would need to be resolved in a conference committee.

We will be watching closely as this process continues and will keep you apprised of important updates. If a final version the AHCA passes both the House and Senate and is signed by President Trump, we will notify you and explain your options going forward.


Calculating Overtime

Make sure you’re calculating overtime on workweek basis, not a pay period basis. Non-exempt employees must be paid time and a half for all hours worked over 40 in a workweek, regardless of total hours worked in the pay period.

The workweek is the 7-day, 168-hour period during which you track employee time to see if anyone has worked more than 40 hours and is therefore entitled to overtime. For instance, many companies set their workweek to begin at 12:00 am Sunday morning and end the following Saturday at midnight. Your workweek shouldn’t fluctuate, and your employees should be aware of when it starts and ends (hopefully, that’s in your handbook!).

The most common error we see here is employers on a 2-week payroll cycle thinking that they don’t have to pay overtime if the employee didn’t work more than 80 hours in the pay period. That’s not the case. If an employee worked 50 hours in week 1, and 30 hours in week 2, they’d be entitled to 70 hours of straight time and 10 hours of overtime during that pay period. In week 1 they did 10 hours of work above and beyond 40 in the workweek and are therefore entitled to overtime, regardless of how many hours they worked during the rest of the pay period.


April 5, 2017

Sexual Orientation Protected in Employment, According to Seventh Circuit Court of Appeals

Yesterday the Seventh Circuit Court of Appeals became the first federal Appellate Court to rule that under Title VII of the Civil Rights Act of 1964, sex includes sexual orientation. The Court’s ruling creates law only in Indiana, Illinois, and Wisconsin.

Every other Circuit Court of Appeals, except for the Ninth Circuit, has ruled that the term sex in Title VII does not include sexual orientation; these rulings were issued between 1979 and 2012. Federal Courts of Appeal often try to align their rulings with the decisions of the other Circuits. However, the Seventh Circuit decided that it was time to take a fresh look at this question in light of the Supreme Court’s 2015 decision in Obergefell (legalizing same-sex marriage) and the general shift in societal norms.

The fact that the federal Courts of Appeal have issued conflicting decisions means that the question is more likely to be picked up by the Supreme Court should other litigants appeal their cases to the highest level. The defendants in this case, Hively v. Ivy Tech Community College, have said they will not appeal.

Illinois and Wisconsin already have state laws that create employment protections based on sexual orientation, so there are no action items for employers in those states. Employers in Indiana, however, should ensure that their policies and practices do not allow for discrimination based on sexual orientation.


November 15, 2016

New Form I-9 Released

The new I-9 form was released yesterday, November 14. It may now be used, although the old form will remain valid through January 21, 2017. After that date, you must use the new form. We recommend you train all employees who are responsible for completing the I-9 and start to use it for new hires as soon as possible.

A few important notes about this new form:

  1. While the new I-9 is intended to be completed as a fillable PDF to reduce errors, it should not be confused with an electronic I-9. An employer must still print the completed I-9, obtain the appropriate signatures (which are not fillable via PDF), monitor reverifications, and retain the form for the proper retention period. Employers and employees may choose to complete any or all of the form by typing into the fillable PDF or using a pen to fill out sections after the document has been printed. Documents that are partly printed and partly handwritten are acceptable. If using an electronic version of the I-9, employers must still comply with the U.S. Citizenship and Immigration Services’ criteria to be certain of the integrity of the electronic system.
  2. Do not reverify current employees due to the new form. Use the new I-9 only for newly hired employees and when you are required to reverify temporary work authorization. Additionally, all previous forms must still be retained for the proper retention period. The form must be retained for as long as the employee works for you, plus three years after their hire date or one year after their termination date, whichever is later.
  3. To download the form from the USCIS website (uscis.gov/i-9), right click on the link to the new form—“Form I-9 (PDF, 535 KB)” – and select the “Save link as” option. This will allow you to save the PDF and open it in a PDF reader. Clicking to open it in a web browser (as you would with most links) will result in an error page.

Notable changes to the form itself include the following:

  • When completed electronically, there are prompts to ensure information is entered correctly. For example, the form will validate that the correct number of digits are entered for an employee’s Social Security number and various expiration dates. Calendars and drop-down lists also include electronic assistance.
  • The form includes on-screen instructions for each field as well as easy access to the full instructions.
  • In Section 1, employees must only provide other last names used, as opposed to all other names used.
  • Below an employee’s signature line, they must indicate via checkbox whether a Preparer and/or Translator was used to complete Section 1. Multiple preparers/translators can now be entered into Section 1 if needed.
  • There is a dedicated area for including additional information (when required) rather than having to add it in the margins.
  • In Section 2, employers will find a new “Citizenship/Immigration Status” field in the first line with numbers one through four. These numbers correlate directly to the employee’s selected citizenship or immigration status entered in Section 1. If you use the fillable version of the form, the corresponding digit will pre-populate. If you use a paper version, enter the corresponding digit in this field. These fields (the top line of Section 2) help to ensure that the two pages of an employee’s Form I-9 remain together.

The USCIS has yet to release a new Handbook for Employers (M-274) and advises employers to follow the new form instructions for the most up-to-date information. The updated instructions are also available for download on uscis.gov/i-9.


November 14, 2016

Overtime Rules Go Into Effect on Dec. 1

The new federal overtime rules go into effect on December 1, 2016—just over two weeks from now. There are four major changes of which employers should be aware.

  1. The new minimum salary for most exempt Executive, Administrative, Professional, and Computer employees will be $913 per week ($47,476 per year).
  2. Up to 10% of this income may come in the form of non-discretionary bonuses, incentive pay, or commissions. That portion of the compensation must be paid at least quarterly. If an employee does not earn enough in bonuses and commissions to be on track to make $47,476 per year (measured at the time of the quarterly payment is made) the employer has two options. They can pay the difference to keep the exemption (even though it was not earned), or they can retroactively reclassify the employee as non-exempt and pay all overtime that was worked during the previous quarter.
  3. The new minimum salary level for “Highly Compensated Employees” will be $134.004 per year. This exemption may be used when an employee carries out a limited number of executive, administrative, or professional duties, but is very well-compensated. It is rarely used and not allowed in all states.
  4. The salary threshold will increase every three years. The next change, which will be effective January 1, 2020, is expected to increase the minimum salary to approximately $51,168 per year.

Prior to December 1, employers should send each employee who will be reclassified written notice of their change in classification and rate of pay. Employers should also ensure that newly non-exempt employees are made aware of policies that now apply to them, such as overtime, timekeeping, and meal and rest breaks. While there have been legal challenges and attempts by Congress to delay implementation, we do not foresee any changes to the rules until 2017, if at all. Employers should therefore be in compliance by December 1.

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