- 2006 -
Q: One of my salaried employees came to work and reported that he had a really bad headache. He decided that he could not concentrate effectively and went home sick. Because the employee was only at work a half an hour and because he was sick and didn't really work at all, do I count the day as a sick day in regards to payroll? - Mary (Santa Maria)
A: The law in California recently changed to allow for partial days absence caused by sickness or injury to be charged to an exempt employee's sick pay bank. The condition is that the employee has such sick pay available at the time of the absence in a bona fide sick pay plan or benefit, which does not create a vested benefit payable at termination. A word of caution: Consistency is key in providing this benefit and treating all employees equally. - Jeannine, HR Director USA (12/31/2006)
Q: My boss told me about three months ago that he was going to give me a raise. He mentioned it again last week only this time he said that he was going to retro-activate it to reflect the time he told me it was going to occur. Due to my frustration, I decided to take another job from a competitor. Am I entitled to this retro-activated raise I was promised? I really feel like I should be. - "Frustrated" (Atascadero)
A: There are no laws on the books in California that require an employer to keep a verbal "promise made" regarding a pay increase, retroactive or not, particularly when the employee is no longer with the company. But good luck in your new employment endeavor! - Jeannine, HR Director USA (12/24/2006)
Q: Does an employer who offers paid medical insurance have to offer it to all employees...or can he legally not include one employee? - Mary (Nipomo)
A: Your Plan Description as provided by your carrier (Blue Cross, for example) will define who must be covered and what exceptions can be made. An owner of a small business is one example of a legal exclusion of one person. I hope this helps. - Jeannine, HR Director USA (12/17/2006)
Q: Last week when I picked up my payroll check from work, I noticed a big deduction was taken that I had not given approval for. When I called to find out what was going on, I was told by my employer that they had been served to garnish a large portion of my wages for unpaid child support and taxes. Does my employer have the right to take such action even though I wasn't told prior? - "Broke" (Santa Margarita)
A: Yes, your employer is obligated by law to honor a garnishment for child support or face serious fines and penalties for non-compliance. Although the law does not require an employer to notify the employee in advance of such a garnishment, many employers do provide advance notice to an employee as a courtesy. - Jeannine, HR Director USA (12/10/2006)
Q: I'm an employee who was told that restroom visits are only allowed during break times. The problem is that there is only one restroom (located in the rear of the plant) and not enough time for everyone in my department to use it during our brief 15 minute break. Do I have the right to use the restroom whenever I need to? Does my supervisor have the right to dock my time if I am not able to return to my post within the 15 minutes? - Maria (King City)
A: The labor law in California requires employers to provide a minimum of 10 minutes for each 4 hours of work for rest; likewise you must be allowed to attend to normal biological needs such as a restroom visit. It sounds like your employer needs to arrange and communicate a plan to accommodate all employees' needs to attend to breaks and restroom visits. If you are allowed 15 minutes for your break and you are regularly not back at your workstation you may be faced with a performance issue by your supervisor. I'd advise speaking with your supervisor before this does become an issue. - Jeannine, HR Director USA (12/03/2006)
Q: As an employer with 100+ employees, am I required to offer paid vacation, sick and personal leave, and if so how much and what are the guidelines? - Tim (Oceano)
A: In the state of California, paid time off benefits are considered "voluntary," therefore you can make the rules regarding same. This means you need to have a policy and treat all employees consistent with your policy. As for Personal Leave Time, there are no legal requirements to allow or permit Personal Leave of Absence, however if you decide to provide such a leave you need a policy and should treat all employees consistent with that policy. - Jeannine, HR Director USA (11/26/2006)
Q: When an employee tells me that they are resigning their position and leaving the company, do I still have to pay their final check on the day they leave? - Linda (Lompoc)
A: If an employee quits his or her job and provides more than 72 hours notice, you must provide all wages and accrued unpaid vacation on the last day of work. If the employee gives less than 72 hours notice, the same payment is due no later than 72 hours after the notice is given. - Jeannine, HR Director USA (11/19/2006)
Q: I've heard there are restrictions on the types of work a minor may perform, is this true? - Joe (Creston)
A: Yes this is true. State and federal law both prohibit minors from working in many hazardous occupations and from driving a motor vehicle on the public highways and streets, including delivering any type of goods from a motor vehicle. - Jeannine, HR Director USA (11/12/2006)
Q: I'm wondering, are there any exceptions to the limits on occupations and hours for minors? - Nancy (San Luis Obispo)
A: Yes, certain industries, such as entertainment and agriculture, are subject to different limits on occupations and hours than most other industries. In addition, minors working as bat boys and bat girls at professional baseball games are permitted to work extended hours. I would advise obtaining the legal requirements for these industries before employing minors; know the rules and legalities ahead of time. - Jeannine, HR Director USA (11/05/2006)
Q: Can I pay a minor less than a regular employee? - Candy (Paso Robles)
A: In limited circumstances, minors may be paid less than the minimum wage. Employers may pay "learners" (individuals who do not have previous similar or related experience in the occupation) 85% of the minimum wage rounded to the nearest nickel, but not less than $5.75. This below minimum wage will apply only for the first 160 work hours, and then the minimum wage requirement applies. - Jeannine, HR Director USA (10/29/2006)
Q: I need to know if minors need permits to work year-round? - Rich (Templeton)
A: It is a common misconception that work permits are not necessary during holidays and summer vacation. Work permits are required year-round, even when school is not in session. Even if you hire high school "dropouts" or married minors, the work permit requirement still applies to these minors. - Jeannine, HR Director USA (10/22/2006)
Q: I've been told that I need to be certified as a drug-free workplace, is this true? - Leticia (Paso Robles)
A: Yes; if you are working under a government contract for the procurement of property or services valued at $100,000 or more, and/or if you are a corporation or group that receives a federal grant. If this is you, then both federal and state law have Drug-Free Workplace Acts which impose legal obligations on employers. - Jeannine, HR Director USA (10/15/2006)
Q: As an employer, am I able to conduct a credit check on a job applicant or an employee? - Michelle (Cambria)
A: The federal Fair Credit Reporting Act does restrict an employer's ability to use credit reports and investigative consumer reports for employment purposes. You will need to obtain a release from the employee or applicant, and you must provide a number of notices to the employee or applicant throughout the process. - Jeannine, HR Director USA (10/08/2006)
Q: Can I release an employee's credit information to someone who calls me about it? - Jorge (San Luis Obispo)
A: I can tell you that California law restricts an employer from giving or providing any form of credit information to an employee's creditors who may contact you. In three words: Don't do it. - Jeannine, HR Director USA (10/01/2006)
Q: Do I have to do my employee training in Spanish? - Barbara (Templeton)
A: Since employers are obligated to train employees so that they do their work safely, I would advise training in a language other than English in a multilingual workforce. Be aware that many sections of Title 8 provide detailed training instruction employers are to provide but don't necessarily specify what the employer must do to be sure the employee understands the training. A bit ambiguous, I know. - Jeannine, HR Director USA (09/24/2006)
Q: I'm a recruiter and my company does not like smokers. Can I ask a candidate about smoking during a job interview? - Francine (Santa Maria)
A: No you cannot. Asking an applicant if he/she smokes would be considered a health-related question and is prohibited during the application process. Under the Americans with Disabilities Act (ADA), employers are prohibited from asking health-related questions before extending an offer of employment. - Jeannine, HR Director USA (09/17/2006)
Q: What is my liability as an employer if an employee provides me with false documents to go with the Form I-9? - Karen (Atascadero)
A: You will be happy to know that you, the employer, will not be liable for accepting documents that appear to be genuine, unless you know or have reason to know that the documents are false. - Jeannine, HR Director USA (09/10/2006)
Q: Can you tell me how long my company should keep each Form I-9 on file? - Tina (Paso Robles)
A: The answer to this one is pretty straight forward: You need to retain the completed I-9 Forms for at least three years from the date of hire or one year from the date of termination, whichever is longer. - Jeannine, HR Director USA (09/03/2006)
Q: Hey Jeannine, our company wants certain documents with the I-9 Form; can I request the Driver's License and Social Security card? - Liza (San Luis Obispo)
A: Here's my advice; review the list of acceptable documentation on the back of the I-9. Be aware that employers are not permitted to specify which documents they will accept from an employee, such as a driver's license and Social Security card. Instead, show the list of acceptable documents to your prospective employee and allow him/her to choose which verifying documents to provide. - Jeannine, HR Director USA (08/27/2006)
Q: As an employer, am I legally obligated to have and distribute an Employee Handbook? - Jesse (Atascadero)
A: The law does not require an employer to have an employee handbook. However, if an employer does have a handbook, certain policies may be required by law. An employer with fifty or more employees must have a family leave policy if the employer's handbook describes other kinds of personal or disability leaves available to its employees. An employer with five or more employees must have a pregnancy disability leave policy in its handbook if the handbook describes other kinds of temporary disability leaves or transfers available to its employees. It's always a good idea to have your legal counsel review your handbook prior to distribution to your employees. - Jeannine, HR Director USA (08/20/2006)
Q:
Should I have a different employee handbook for my managers and supervisors? - Sean (San Luis Obispo)
A:
You may want to create a supervisory manual in addition to an employee handbook. Manuals for supervisory/management employees often contain information not relevant to non-supervisory employees, such as hiring policies, appropriate pre-employment inquiries, drug testing, physical examinations, proper methods of response to employee complaints of discrimination, etc. This type of manual is not required but is often a welcome tool for your supervisors and managers.
- Jeannine, HR Director USA (08/13/2006)
Q: As an employer am I legally obligated to provide Sick Leave to my employees? - Victor (Nipomo)
A: You are not required to provide paid sick leave for your employees. However, under the Americans with Disabilities Act and state disability discrimination laws, if you have 15 or more employees you may be required to provide unpaid time off work in the form of reasonable accommodation and to provide family/medical leave under state and federal law if you have fifty or more employees or are a public employer. - Jeannine, HR Director USA (08/06/2006)
Q: What is the timing for a former employee to elect COBRA coverage? - Bill (Paso Robles)
A: After being notified of COBRA rights, the qualified beneficiary has 60 days in which to elect or waive COBRA coverage. The initial premium is then due within 45 days of the date COBRA coverage was elected, retroactively paying for time elapsed during the election period. - Jeannine, HR Director USA (07/30/2006)
Q: Can I terminate the employment of someone working for me whenever I want within the Introductory/Training Period? - Lupe (Buellton)
A: At-will status applies during the introductory period. An introductory period grants no special rights to a new employee. However, an introductory period provides no special protection from wrongful termination claims. An employee is protected from unlawful termination from the first day of work. - Jeannine, HR Director USA (07/23/2006)
Q: I have employees working in other states; what laws do I have to follow? - Brenda (Santa Maria)
A: The law in the state in which the employee works is the law that applies to him/her. Therefore, an employee in Nevada working at home for an employer just over the state line in California will be governed by Nevada employment laws. - Jeannine, HR Director USA (07/16/2006)
Q: Can I require my employees to take their vacation time only after they earn it? - Eldon (Pismo Beach)
A: An employer has the right to set a policy about when vacations may be taken and for how long; and is not required to permit employees to take vacation in advance of earning it. If an employer does allow an employee to use vacation prior to it being earned, I would advise treating as an advance on wages or an unsecured loan. I would further suggest that you have the employee sign an agreement in writing that unearned vacation pay has been advanced and will be deducted against future accrual. However, be aware that if the employee leaves employment prior to it being earned, the value of the remaining unearned vacation pay that was advanced may not be deducted from the employee's final pay. - Jeannine, HR Director USA (07/09/2006)
Q: When does an employer have to provide information about COBRA to employees? - Terry (Santa Maria)
A: COBRA rights notification is required both at the time an employee becomes covered by a plan subject to COBRA and at the time of a qualifying event. Employers and employees have certain notification obligations when qualifying events occur. Be aware that failure to notify qualified beneficiaries of their COBRA rights can subject you, the employer, to penalties. - Jeannine, HR Director USA (07/02/2006)
Q: I hope you can help me. I think my employer is trying to fire me after (many) years of service. Instead of quitting, if I wait to get fired would I be eligible for unemployment insurance? - Name Withheld
A: Whether or not you are eligible for Unemployment Insurance (UI) is determined by the State of California Employment Development Department (EDD). An employee who is "coerced into quitting" may sometimes qualify for UI benefits. My advice is to be completely honest with your supervisor; let him/her know that you would like support in working toward your performance goals. This action can best serve you both in your quest to move forward and to continue to contribute after many years of service to your company. - Jeannine, HR Director USA (06/25/2006)
Q: Am I legally required to pay a meals stipend to an employee who is working at an out-of-town trade show on my behalf? - Angel (Paso Robles)
A: Yes, you must reimburse employees for expenses necessary and in direct relation to performing their duties or in compliance with your instructions, including out of town travel. Common examples are mileage, travel, and dining expenses. You may set "reasonable rules" regarding amount of per diem or reimbursement. I also advise use of a standard policy and Travel & Expense Reimbursement Form. - Jeannine, HR Director USA (06/18/2006)
Q: Are there any posters relating to Workers' Compensation that employers are required to display? - Edd (Oceano)
A: Employers must post a notice about the company's workers' compensation insurance, the name of the insurance carrier, and who within the company is responsible for handling workers' compensation claims. An employer must give each new employee a workers compensation insurance pamphlet at the time of hire or new hire orientation. - Jeannine, HR Director USA (06/11/2006)
Q: I'm wondering if I have to continue benefits for my employees who leave work and take FMLA leave of absence. Do I? - Jan (San Luis Obispo)
A: No, you do not. There is no law that requires you the employer, to continue to accrue vacation and sick leave when an employee takes a leave of absence. I would advise you to develop a policy that addresses this issue and to apply it consistently to all leaves of absence to avoid any adverse impact. Other laws apply however, to other benefits considered Health and Welfare Benefits (insurances). - Jeannine, HR Director USA (06/04/2006)
Q: How can I tell if the person I am hiring is an Independent Contractor or if I have to classify her as an employee? - Chris (Shandon)
A: The differences between an independent contractor and an employee are significant. The largest difference is the amount of control over the person performing the services or work. Here are some of the factors that determine independent contractor status: can you terminate the person at-will; does the person have their own distinguishable business; are you directing the work; does the person supply their own work tools and place of work. Typically, the more control the employer has the more likely the person is an employee and not an independent contractor. - Jeannine, HR Director USA (05/28/2006)
Q: Can I legally make copies of the documents an employee gives me to go with the I-9 Form? - Kathy (Arroyo Grande)
A: I would advise you to check with your attorney on this one as I've received mixed answers--from attorneys--myself. I also suggest downloading the I-9 Form (Rev. 05/31/05) from http://www.uscis.gov/graphics/formsfee/forms/files/i-9.pdf. Reading the first page, it tells you, "These photocopies may only be used for the verification process and must be retained with the I-9." - Jeannine, HR Director USA (05/21/2006)
Q: I want to know if I can legally hire a person as an unpaid intern. - Beverly (San Luis Obispo)
A: Yes you can. Someone hired as an unpaid "intern" must be a student enrolled in an accredited academic program and receiving academic credit for the internship or be in a program approved by a public agency to provide training. If this is not the case then the employer must pay at least minimum wage for all hours worked to be legally compliant. - Jeannine, HR Director USA (05/14/2006)
